With a number of employment law and data privacy implications, the use of AI is a growing area of focus for regulators and the UK government. In the meantime, there are several considerations for employers implementing AI technology in the workplace.

There is no single, recognised definition for AI. Broadly, AI is understood as an umbrella term for a range of algorithm-based technologies that solve complex tasks by carrying out functions that previously required human thinking.

In the employment context, accelerated by the COVID-19 pandemic, AI is increasingly being used in all stages of the employment relationship, but particularly in recruitment.

AI in recruitment

Τhere are clear benefits in using AI to reduce resource time and costs:

• AI technology can be used to review and filter job applications.

• AI can be used to assess interview performance by using natural language processing and interview analytics to determine a candidate’s suitability in light of their soft skills and personality traits.

This reduces the amount of time that needs to be spent on these tasks by talent sourcing specialists and human resources, allowing them to focus on other valuable work.

Despite these benefits, there are some key risks and associated safeguards that employers in the United Kingdom should consider before implementing AI technology in their employment cycle.

KEY LEGAL RISKS – DISCRIMINATION

Under the Equality Act 2010, it is unlawful for an employer to discriminate against candidates or employees on the basis of “protected characteristics” (namely, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation). The use of AI can result in indirect discrimination claims where someone with a protected characteristic suffers a disadvantage as a result of an algorithm’s output.

To defend such a claim, the employer would need to show the use of AI was a proportionate means of achieving a legitimate aim. While the use of technology to streamline the recruitment process may be a legitimate aim, it is difficult to see how such a tool, which can have significant implications for a candidate, can be a proportionate means of achieving that aim without any human oversight.

The use of AI may also create other legal risks for employers, such as:

• Disabled people may face particular disadvantages in undertaking automated processes or interviews. For example, some systems read or assess a candidate’s facial expression or response, the level of eye contact, voice tone, and language, which could disadvantage candidates with visual or hearing impairments, those on the autism spectrum or with a facial disfigurement. Given the obligation under UK law to make reasonable adjustments to remove disadvantages for disabled people, an employer could potentially find themselves in breach of discrimination laws when using AI software as a blanket approach.

• Language and tone of voice can also be more difficult for some whose first language is not English, increasing the risk of racial bias and unlawful discrimination claims on the basis of race.

In the United Kingdom, compensation for unlawful discrimination is uncapped (although tribunals take into account the “Vento bands” when assessing compensation, the current upper band of which is approximately £56,000 for the most serious cases of unlawful discrimination).

KEY LEGAL RISKS – DATA PROTECTION

It is likely that the use of AI during the employment lifecycle will involve the processing of candidate and/or employee personal data. Employers should therefore be mindful of their obligations under data privacy regulation, with particular regard to three key principles: (1) lawfulness, (2) fairness, and (3) transparency.

The use of AI technology to make employment decisions, without human scrutiny, will fall within the scope of a “solely automated decision.” The UK General Data Protection Regulation (GDPR) and Data Protection Act 2018 restrict an employer from making solely automated decisions that have a significant impact on data subjects unless this is:

• authorised by law;
• necessary for a contract; or
• where explicit consent was given.

Even then, except where it is authorised by law, specific safeguards must be in place, such as a mechanism for the individual to challenge the decision and to obtain human intervention with respect to the decision.

The processing of special category personal data, such as health or biometric data, is further restricted unless on specific lawful grounds.

Any use of AI is likely to require a data protection impact assessment. If high risks to the rights of individuals cannot be mitigated, prior consultation with a relevant supervisory authority (such as the Information Commissioner’s Office (ICO) in the United Kingdom) is required and the AI technology cannot be deployed without the consent of the supervisory authority.

The ICO has issued guidance and an AI toolkit to assist organisations in identifying and mitigating risks arising from the use of AI technology.

MITIGATING THE RISKS

Notwithstanding the risks outlined above, the use of AI technology is developing rapidly and there are a number of steps employers can take to introduce innovative technology while minimising legal risk, including:

• ensuring they have fully trained, experienced individuals responsible for the development and use of AI to minimise the risk of bias and discrimination. The provider of the technology should be able to demonstrate that the data and algorithms have been stress-tested for bias and discrimination against candidates because of, for example, their gender, race, or age, and disparate impact assessments should be conducted on a regular and ongoing basis.

• establishing clear and transparent policies and practices around the use of AI in recruitment decisions.

• identifying appropriate personnel to actively weigh up and interpret recommendations and decisions made by AI in the recruitment process before applying it to any individual. It is important that meaningful human review is carried out; data privacy restrictions cannot be avoided by simply “rubber-stamping” automated decisions.

• not solely relying on AI—ensuring that AI is used only as an element to assist in recruitment decisions.

• ensuring that the process allows for human intervention: if a candidate needs adjustments because of a disability, make it clear with whom and how they should make contact to discuss what might be required.

• implementing ongoing equality impact assessments to identify early any issues or negative impact on diversity and inclusion as a result of the introduction of AI technology.

• prior to implementing AI, considering whether a data protection impact assessment is required. Additionally, employers can utilise the ICO’s AI toolkit to assess risk and implement mitigating measures.

• from a data privacy perspective, considering and identifying the lawful basis for processing personal data in this way before proceeding with any automated profiling or decision making.

• updating candidate and employee privacy notices to make clear the use of AI technology in the processing of personal data.

FUTURE DEVELOPMENTS

In the United Kingdom, there have been calls by the Trade Union Congress in a recent report recommending measures to protect against algorithm discrimination, including:

• a reversal of the burden of proof for AI use, where the employer must disprove that discrimination occurred rather than the claimant bearing the burden of proof;

• the creation of statutory guidance on steps that may be taken to avoid discrimination where AI is used; and

• mandatory AI registers to be regularly updated by employers and available to candidates.

However, the UK Government has produced a white paper, “AI regulation: a pro-innovation approach” and is currently taking views on it as part of the consultation process. So we need to watch this space on the shape of government regulation on the use of AI.

If you would like an AI policy for your handbook please email nicola.goodridge@goodhr.co.uk or call +44 7917878384

This month’s newsletter is from Darren Hilton, an Executive Coach who happens to live a stone’s throw from me but who I had never met before bumping into him at a mutual friend’s birthday party! He has lots to add to the GoodHR offering and so I invited him to share his tips on how to give feedback – which neatly follows hard on the heels of the most recent newsletter giving top tips on how to hold a ‘good’ appraisal. So do read his pearls of wisdom and if you would like to speak to him directly his contact details are at the end of this newsletter……

Ever received feedback that really stings? Or been given insight into how you’re experienced by others, challenging your self-perception but at the same time encouraging you to change your behaviour? Maybe you’ve been given the s**t sandwich method? You hear the positive comments, but the mountain of negatives makes anything positive seem like a distant memory.

These conversations could be the most enlightening we will ever experience and yet they are often awkward, may avoid the difficult topics or deliver in a way that is difficult to digest, let alone do anything about. Feedback opportunities often arrive alongside annual appraisals or performance reviews – they can lead to a stressful situation for both parties, especially when they are linked to salary and bonus reviews.

And yet feedback given in a caring and challenging way can be very effective too. It can help the receiver of the feedback to:

• recognise their strengths and learn how to play to them more actively;
• understand how they may become derailed in certain situations and how to reduce this;
• receive recognition for previous and current performance;
• receive encouragement for future projects.

So instead of avoiding feedback, or delivering it ineffectively, you may want to try a different approach. Stephen M. R. Covey’s comment, that we often judge ourselves by our intentions and other by their behaviours, is a good place to start to get to the heart of what is often missed:

• When setting up your feedback session, share your intention for the feedback in a way that makes the person feel valued and demonstrates that you have their best intentions at heart.
• Explain what you would like to discuss, without going into detail, and ask if it is a good time for them to have this type of conversation. Gaining permission is often ignored and yet it can ensure the conversation feels balanced and provides the recipient with some control.
• Discuss in the context of your, or others’, perceptions of observed behaviours, which avoids it feeling like a character assassination.
• Try to understand what was going on for the person, from their perspective.
• Ask questions that reveal their intentions, what was driving these behaviours, where they were coming from, what were they trying to achieve.
• Discuss the gap between the outcomes they achieved and their intentions, whether these were consistent and acceptable.
• Discuss what other options might be available, agree how they will implement them and how this can be reviewed.

Common elephant traps

• Both parties often prepare for the meeting by building up perceptions and stories that can be unhelpful and setting up a dynamic that may work against their intentions.
• Managers may rush to get the negative out of the way and then flower it up with positives, brushing over the important feedback and leaving the employee confused about what is being said and what they can do about it.
• Managers may avoid the negative and simply focus on the operational, making it a transactional experience rather than a developmental one.
• Without clarity about what changes are expected both parties can come away believing they have achieved their aim and yet may be at opposite ends.
• Trust can be broken because neither party says what they mean.

So, what is the pay-off?

• The way you give feedback is as important as the feedback itself.
• Setting people up properly to receive feedback is crucial.
• Taking an enquiring stance can help to appreciate what is really going on.
• When you understand what is really going on, you have a better chance of changing behaviour and performance.
• When handled well trust will increase and openness to feedback can encourage continuous learning.

If you would like any advice, please do contact Darren Hilton at darren@tappingthesource.com or call him on +44 7740 172759

From Nicola at nicola.goodridge@goodhr.co.uk or call +44 7917878384

September and October are a popular time to conduct appraisals. Sadly, in many organisations, appraisals are widely reported to be dreaded by all parties. Managers see them as an embarrassing formality which take up too much precious time. Staff often say they find appraisals daunting, often threatening and, sometimes, even demotivating. Done badly, the appraisal process can indeed frustrate and damage staff relations, especially if seen as a one-off ‘end of term report’ – or even worse, a ‘character assassination’!

As a result, many high-profile organisations are publicly ditching their appraisal systems for a serious of regular ‘catch-ups’ and it can seem overwhelmingly tempting to follow suit, but it is worth looking at the issue more deeply before you do…

• The clear operational focus of frequent, short-term reviews tend to be dominated by managers setting short-term KPIs, leaving competencies and values overlooked.

• The short-term focus can also ignore employees’ career development, which naturally needs a longer-term focus.

• Changing the frequency of appraisal does not magically make managers more skilled at, or more enthusiastic about, developing staff performance. Nor does it mean that they are going to be any better at tackling that difficult conversation.
Training is all important.

Instead of abandoning the traditional annual appraisal, a better way forward may be as follows:

1. The employee completes a self-appraisal form and the comments of those who work closely with them are fed into that appraisal form using 360 feedback or the stop, start, continue method of feeding back.

2. The manager adds their comments to the appraisal form and prepares for the appraisal by being ready with the following information:

a) Data on the employee’s performance – employees are much more likely to accept praise or criticism when it’s based in objective fact rather than just their line manager’s opinion. Performance data can also help you set appropriate discussion topics for the appraisal.

b) Records from the previous appraisal – these might include performance and development goals and evaluation notes made last time. Use them to measure progress and guide discussion.

c) Potential goals to set during the appraisal – some goals may emerge from discussion during the appraisal. However other key goals will relate to current business needs and observations you have already made.

3. The manager holds an appraisal meeting and feeds back all the comments – care and sensitivity are required because the system is transparent with full disclosure which should make those tough conversations easier to conduct.

4. The objectives and development goals that are identified and set in the appraisal meeting can then be reviewed on a regular basis – the appraisal report is not filed away for another 12 months but, rather, is used to monitor progress through the year.

The way ahead may therefore be an annual appraisal followed by regular catch ups through the year. Your employees are also more likely to benefit from an ongoing approach that creates a structure for your staff and better monitors employee progress.

Common pitfalls to be avoided….

• Appraisals conducted by a boss and subordinate alone often lack objectivity. Consider a more senior employee conducting the appraisal, or even an external third party.

• To be effective, all the senior management must be fully committed to the process, should provide training for those who conduct appraisals, and should also make the process and procedures transparent and consistent throughout their organisation.

• Appraisals focussed on discussions on pay or bonus only diminish the possibility of an honest and objective interchange and may well increase the chances of employee demotivation and loss of mutual good-will.

• Appraisals conducted in the absence of any clear and agreed statements of what is expected of the individual being appraised (usually the job description) mean that it is highly unlikely that a review of performance can be either fair or objective.

• Many appraisals are conducted badly: for example:
– without impartiality;
– without proper preparation or due reference to appropriate records;
– without reserving adequate time for the process;
– without careful listening skills and two-way participation;
– without due confidentiality;
– without appropriate follow-up action which is properly recorded and monitored.

• Some methods of appraisal are far too time-consuming, requiring more effort than the parties involved feel is worth-while and/or are they are much too bureaucratic, based on a ‘tick-box mentality’ that allows for no proper discussion.

• Some appraisals concentrate on past performance at the expense of looking forward. The outcome of an appraisal should never come as a complete surprise. It is the saving up of ‘bad news’ until appraisal-time that probably gives appraisals such a bad name.

A reason to appraise….

Despite all the innate mistrust of the appraisal system (by those in particular who have seen the process fail before or conducted badly), the benefits of a well-conducted appraisal process are substantial. These include opportunities to:

• review performance and development needs formally and objectively;
• seek collaborative solutions to possible problems, before they become a running sore;
• praise and acknowledge good performance;
• improve relationships and internal communications;
• improve the effectiveness of the organisation and its employees.

If your appraisal form needs a refresh or your appraisal process is a little ad hoc or your senior management team could benefit from an external appraiser do get in touch with me nicola.goodridge@goodhr.co.uk or call +44 7917878384

As the government’s Flexible Working Bill nears completion, employers are being warned to take steps now to update flexible working policies.

• Millions of employees will receive day one right to request flexible working, empowering workers to have a greater say over when, where, and how they work.
• Businesses set to benefit from higher productivity and staff retention as a result.
• Around 1.5 million low paid workers will be given even more flexibility, with new law coming into force to remove exclusivity clause restrictions, allowing them to work for multiple employers if they wish.

What Are the New Flexible Working Rules?

Under the new rules, UK employees will be able to request flexible working from day one of their employment. The new rules also aim to remove exclusivity clause restrictions to make it easier for employees to work for multiple employers at once.

What is Flexible Working?

What does the government mean by “flexible working”? Essentially, they seem to mean any working arrangement that is not a standard 9-5. This might include:

• a combination of working from home and from the office, or the ability to work entirely from home.
• job-sharing, flexitime and other non-standard working practices.
• the ability to work compressed, annualised, and staggered hours.

What’s going to change?

Under the new Flexible Working Rules 2023 the following changes are proposed:

• employees will have the right to request flexible working from day one of their employment. Previously, employees had to wait 26 weeks before they requested flexible working.
• employers can no longer outright reject flexible working requests. Instead, they must consult with the employee who made the request, to discuss alternative arrangements. However, the “eight reasons to refuse a request” will stay in place.
• employers must make a decision on flexible working requests within two months. Previously, employers had three months to make their decision.
• employees can make two statutory requests for flexible working in any 12-month period. Previously, employees could only make one statutory request a year.
• employees no longer have to explain how a flexible working change would affect their employer, nor do they have to explain how they’ll deal with this change. Previously, employees were required to supply this information as part of their statutory request.

Exclusivity Clauses Exemption Changes for 2023

Exclusivity clauses restrict workers from working for multiple employers. But under the new rules, workers on contracts with a guaranteed weekly income of £123 a week or less will now be exempt from exclusivity clauses.

The government believes that this will allow around 1.5 million low paid workers to boost their earnings through working multiple short-term contracts at once.

What will these changes mean for employees and employers?

• For employees: millions of workers will now have a much greater say in how, where, and when they work. This will enable many to enjoy a better work/life balance and to make time for other commitments such as studying or caring.
• For employers: giving employees greater control over their working lives could lead to happier and more productive staff. So many businesses might see a boost in performance, improved staff retention and better relationships between staff and management.

When will these changes come into force?

A Private Member’s Bill is currently making its way through parliament and has just reached its final stage in the House of Lords (July 2023). A Royal Assent is all that is required to complete the process.

There is not yet a date for when these changes will come into effect, but you should expect these rules to apply sooner rather than later.

For advice or a newly drafted flexible working policy email nicola.goodridge@goodhr.co.uk or call +44(0)7917878384

Half of all the working days lost in the UK due to ill health are connected to mental health. Managing employees with mental health issues is complicated, and poor mental health has significant consequences for employers including lost productivity and increased staff turnover.

These are the key things you should be considering when managing employees with mental health issues:

1. Be aware of your obligations

Employers are responsible for helping employees manage work related stress. Although many employers feel reluctant to interfere, there are positive legal obligations upon them:

• to take reasonable care of employees’ health and safety; and
• to assess the risk of stress related ill health arising from work activities.

Employers should therefore be mindful of the following risk factors and manage them where possible:

• long hours
• unrealistic expectations and deadlines
• high-pressure environments
• lack of control in your workload
• job insecurity and change management
• lone working

It is also important to note that some mental health issues will be classified as a disability under the Equality Act, which means that reasonable adjustments may have to be made in the workplace. These adjustments should be considered in conjunction with medical evidence and the employee should have input to any adjustments.

The reasonable adjustments that should be made will of course depend on the individual, (and the size of the employer) but some common changes could include:

• different hours,
• phased return after a long absence,
• reduced workload, or
• a mentor.

Even where employees have not formally disclosed they are suffering from mental ill health, reasonable steps should be taken and systems should be in place to find out relevant information, whilst also considering issues of privacy. Employers should always give the employee the opportunity to explain the reason for their actions or dips in performance at work, and if health issues are mentioned in these discussions, should then investigate further before reaching a decision.

2. Be proactive

There are preventative steps you can take to try and proactively support employees and prevent problems occurring as follows:

1. check in with employees regularly – make sure regular catch ups are scheduled in advance with employees, both individually and as a team. These may need to be more frequent when dealing with remote workers.

2. create a positive atmosphere which encourages conversation – you need to ensure that employees feel like they can ask for help when it is needed. It’s important that employees generally feel comfortable to talk about issues impacting on their work. If they do feel comfortable talking about childcare or other health issues, then this is a good step towards them talking openly about their mental health.

3. encourage employees to use the support tools available to them. This may be sharing external resources or internal resources like your employee assistance team.

4. encourage a positive work/life balance – encourage employees to take breaks and also look after their own wellbeing.

5. appointing mental health first aiders – appointing and training mental health first aiders can be a great way to support your employees and spot issues early. It also means that employees have someone in the business they can go to that isn’t their manager, to sign post them so they can get the support they need.

3. Recognise the signs

Knowing whether or not an employee is struggling with a mental health issue can be difficult. Behavioural factors that you may see are:

• lateness
• withdrawal
• working long hours, change in work pattern
• uncharacteristic problems with colleagues
• short term absences
• long term absences

These behavioural red flags are even harder to spot when someone is working from home, so it makes open and frequent communication even more important when managing employees with mental health issues and a need to ensure regular face to face meetings.

4. Keep communication open

If an employee discloses a mental health issue it is important that the manager:

• listens and makes the employee feel ‘listened to’
• avoids dismissing the concerns
• avoids failing to take them seriously
• avoids offering an immediate solution.

The aim should be to come away with an understanding of the employee’s concerns and for the employee to feel they have been listened to in a safe place. Then you can consider how best to support the employee.

5.How to manage poor performance

Poor mental health can affect performance but despite the mental health issues you should still follow your performance management process. You may begin with some informal support, but you can and should then engage in your normal processes.
A fair performance management procedure will involve:

• consultation with employee
• medical investigation often with input from a GP or Occupational Health
• considering re-deployment
• reasonable adjustments

In a nutshell….

When it comes to managing employees with mental health issues you are not expected to have all the answers…. the following are important to keep in mind:

1. be proactive, don’t shy away from issues and communicate, communicate, communicate!
2. ensure you have fair processes in place and adjust them as necessary.
3. get help from medical professionals and other organisations such as Mind.

For advice contact nicola.goodridge@goodhr.co.uk or on +44 (0)7917878384

Following Gary Lineker’s tweet, which detailed his thoughts on the Government’s asylum policies, he was asked to ‘step back’ from presenting Match of the Day because the BBC believed his tweet broke their impartiality guidelines and was thus in breach of his contract.

Lineker’s tweet became the focus of intense national debate. His enforced break from presenting was also met with derision from co-presenters and commentators across the BBC; with many of them showing support for the presenter by refusing to take part in scheduled programming. This of course, threw the BBC’s sporting schedules into total disarray and also led to many journalists and observers saying that the BBC’s own credibility was seriously undermined.

A difference in understanding?

It’s hardly surprising that large organisations are nervous about social media and more likely to try and discourage their staff’s use of networking sites, rather than encouraging them to actively embrace the on-line world. The Lineker vs. BBC situation highlights exactly why employers can be anxious about their employees being vocal on social media – especially if it’s obvious who they work for.

The BBC felt Lineker’s comments could be interpreted as inflammatory and went against their core remit on remaining impartial – especially when it comes to the actions of the British Government. Lineker, on the other hand, didn’t see a problem and believed he had a right to free speech, with many of his colleagues believing the same.

Although it’s impossible to say for certain, it’s highly likely the disagreement stemmed from whether or not the BBC made their policies on social media use clear, obvious, and consistent across the corporation. It would certainly account for the difference of opinion between the two sides…

Clarity is key for effective social media policies

Social media may not be popular with everyone, but – in whatever shape or form – it is here to stay. This means employers are better off engaging with it pro-actively, rather than trying to get their staff to take a pledge of silence. This is where having a clear, accessible and consistent social media policy comes into play.

Here are some tips for you to consider…

• Make it inclusive of the entire business
HR policies can only ever be truly effective if they are inclusive of the entire business, including your freelancers. The last thing you want to create is a social media policy that says one thing is fine for one group of employees, but not for another – this will likely create division and confusion.

To avoid this from happening, ensure your company’s social media policy includes everyone’s perspective and addresses a wide range of concerns, including those of your organisation’s senior leadership, HR, legal, marketing, and IT departments. If you involve your employees in putting your HR policies together in the first place, they’re much more likely to adhere to its core principles.

• Make it accessible for the entire business

If your policy is there to protect both your employees and your business, don’t just keep it stored deep on a shared drive, or only sent as a document for new starters. Ensure it’s accessible by anyone in the business at any time. In addition, ensured signed copies by your employees are also safely stored there, too.

Shared workspaces or HR portals make it easy for employees to access and view important company documents anytime, anyplace. In addition, any changes made to your policies can be quickly communicated, whilst it can also act as the ‘one true voice’ for your key policies ensuring there’s no confusion as to accuracy.

• Tie them into your own company cultures and values

See the chance to enhance engagement within your business by aligning your social media policy to the visions and values of your business. For example, if a core value of your business is to be respectful to others, then this can be reflected within your social media policy encouraging your people to think carefully about what information they put out in the public domain.

In a nutshell….

Social media continues to evolve and grow; just a few years ago, TikTok was no more than an idea on paper, yet today it’s one of the most used digital platforms. It can sometimes be difficult for businesses to keep up with such technological advances, but it’s important they do so to avoid issues like this arising. Ultimately, a reasonable and relevant social media policy can help safeguard both the employee and employer and any freelancers and contractors, as all parties are aware of what constitutes appropriate use. Where the policy is breached, employers are then able to take fair action against the employee for it.

For advice contact nicola.goodridge@goodhr.co.uk or on +44 (0)7917878384

It is essential that all employers know how to conduct a right to work check on their potential employees. If an employer gets this wrong, they are risking a fine of up to £20,000, a prison sentence of up to five years, or both, for employing an illegal worker.

Right to work checks must be conducted in relation to all potential employees, regardless of nationality or ethnic origin, before the employee starts work.

What is a right to work check?

Essentially, a right to work check requires an employer to either:

• obtain, check and copy a document from the list of approved documents to prove the potential employee’s right to work in the UK; or

• check their right to work status online.

The full list of approved documents can be found in the Employer’s Guide to Right to Work Checks.

Adjusted right to work check measures

Temporary adjusted right to work check measures were put in place on 30 March 2020 due to the pandemic which allowed potential employees to send scanned documents (rather than originals) to an employer by email or a mobile app. The employer was then allowed to conduct a right to work check by checking the original documents via a video call and marking the copy ‘adjusted check undertaken on [insert date] due to Covid-19’.

However, these adjusted right to work check measures came to an end on 30 September 2022. Therefore, since 1 October 2022, if employers wish to carry out a manual check of right to work documents, this will need to be done in person.

Right to work checks since 1 October 2022

In summary, since 1 October 2022, employers now have three options in relation to right to work checks:

• Carrying out a manual check: this involves meeting the potential employee in person, checking their original right to work document, copying it and marking the copy ‘right to work check undertaken on [Date]’.

• Where the potential employee is an overseas national with a biometric work or residence permit. These individuals’ right to work can only be checked online. They must provide their date of birth and a share code to the employer who will then be able carry out an online right to work check. Face-to-face manual right to work checks are no longer enough to establish a statutory defence against a civil penalty in relation to these individuals.

• Employers can use certified Identity Service Providers (IDSPs) to complete digital right to work checks for British and Irish citizens (as long as they hold a valid passport). This is an alternative to manual checks and the IDSPs will complete these digital right to work checks on behalf of employers using Identity Document Validation Technology.

When should employers carry out a right to work check?

Every new employee needs a right to work check. Even if you and a candidate go ‘way back’, you must conduct a right to work check before any contract is signed. It is a fundamental step in the pre-employment process and it is recommended that checks are carried out at interview stage to avoid wasting time and money.

Where an individual is already employed in a business, or has an outstanding visa/immigration status application, employers should check this by using the government’s free online Home Office Employers Checking Service (ECS).

If the person has a right to work, the ECS will send you a ‘Positive’ or ‘Negative’ verification notice within five days. This provides a legal defence for employers for up to six months, in case the individual’s immigration status expires in this time.

You do not need to do checks for existing employees from the EU, EEA or Switzerland if they came to the UK before 1 July 2021.

Do UK citizens need a right to work check?

Yes, British or Irish citizens should provide certain documents for a right to work check but these are typically easier to find and quicker to approve.

In the first instance, British or Irish applicants should show their passport (regardless of whether it has expired).

If this is not possible, they will need to show their employer two alternative documents:

• A document with their name and National Insurance number on it. This can either be from the government or a previous employer, for example, a P45 form.

• A birth or adoption certificate (or a certificate of registration or naturalisation).

In a nutshell….

Hiring has become a major source of stress for employers in the last twelve months as “The Great Resignation” has seen thousands quitting jobs across all sectors. As a result, a record number of employers are searching for alternative hiring routes, like recruiting from overseas.

Knowing how to legally and ethically source staff from both the UK and abroad will give employers access to a wider pool of applicants during what has become a troubling recruitment run.

For advice contact nicola.goodridge@goodhr.co.uk or on +44 (0)7917878384

It is essential that all employers know how to conduct a right to work check on their potential employees. If an employer gets this wrong, they are risking a fine of up to £20,000, a prison sentence of up to five years, or both, for employing an illegal worker.

Right to work checks must be conducted in relation to all potential employees, regardless of nationality or ethnic origin, before the employee starts work.

What is a right to work check?

Essentially, a right to work check requires an employer to either:

• obtain, check and copy a document from the list of approved documents to prove the potential employee’s right to work in the UK;

or

• check their right to work status online.

The full list of approved documents can be found in the Employer’s Guide to Right to Work Checks.

Adjusted right to work check measures

Temporary adjusted right to work check measures were put in place on 30 March 2020 due to the pandemic which allowed potential employees to send scanned documents (rather than originals) to an employer by email or a mobile app. The employer was then allowed to conduct a right to work check by checking the original documents via a video call and marking the copy ‘adjusted check undertaken on [insert date] due to Covid-19’.

However, these adjusted right to work check measures came to an end on 30 September 2022. Therefore, since 1 October 2022, if employers wish to carry out a manual check of right to work documents, this will need to be done in person.

Right to work checks since 1 October 2022

In summary, since 1 October 2022, employers now have three options in relation to right to work checks:

• Carrying out a manual check: this involves meeting the potential employee in person, checking their original right to work document, copying it and marking the copy ‘right to work check undertaken on [Date]’.

• Where the potential employee is an overseas national with a biometric work or residence permit. These individuals’ right to work can only be checked online. They must provide their date of birth and a share code to the employer who will then be able carry out an online right to work check. Face-to-face manual right to work checks are no longer enough to establish a statutory defence against a civil penalty in relation to these individuals.

• Employers can use certified Identity Service Providers (IDSPs) to complete digital right to work checks for British and Irish citizens (as long as they hold a valid passport). This is an alternative to manual checks and the IDSPs will complete these digital right to work checks on behalf of employers using Identity Document Validation Technology.

When should employers carry out a right to work check?

Every new employee needs a right to work check. Even if you and a candidate go ‘way back’, you must conduct a right to work check before any contract is signed. It is a fundamental step in the pre-employment process and it is recommended that checks are carried out at interview stage to avoid wasting time and money.

Where an individual is already employed in a business, or has an outstanding visa/immigration status application, employers should check this by using the government’s free online Home Office Employers Checking Service (ECS).

If the person has a right to work, the ECS will send you a ‘Positive’ or ‘Negative’ verification notice within five days. This provides a legal defence for employers for up to six months, in case the individual’s immigration status expires in this time.

You do not need to do checks for existing employees from the EU, EEA or Switzerland if they came to the UK before 1 July 2021.

Do UK citizens need a right to work check?

Yes, British or Irish citizens should provide certain documents for a right to work check but these are typically easier to find and quicker to approve.

In the first instance, British or Irish applicants should show their passport (regardless of whether it has expired).

If this is not possible, they will need to show their employer two alternative documents:

• A document with their name and National Insurance number on it. This can either be from the government or a previous employer, for example, a P45 form.

• A birth or adoption certificate (or a certificate of registration or naturalisation).

In a nutshell….

Hiring has become a major source of stress for employers in the last twelve months as “The Great Resignation” has seen thousands quitting jobs across all sectors. As a result, a record number of employers are searching for alternative hiring routes, like recruiting from overseas.

Knowing how to legally and ethically source staff from both the UK and abroad will give employers access to a wider pool of applicants during what has become a troubling recruitment run.

For advice contact nicola.goodridge@goodhr.co.uk or on +44 (0)7917878384

The CBI is in turmoil as allegations of sexual misconduct have been made against some of its employees. It flags the question, what counts as sexual harassment, and what should you do if you encounter it at work?

What is sexual harassment?

Sexual harassment is unwanted behaviour of a sexual nature. It must have either violated someone’s dignity, whether it was intended or not, or created an intimidating, hostile, degrading, humiliating or offensive environment for them, whether it was intended or not.

It can be a one-off act or a pattern of behaviour, but it doesn’t have to be repeated.

Examples include:

• flirting, gesturing or making sexual remarks about someone’s body, clothing or appearance

• asking questions about someone’s sex life

• telling sexually offensive jokes, making sexual comments or jokes about someone’s sexual orientation or gender reassignment

• displaying or sharing pornographic or sexual images, or other sexual content

• touching someone against their will, for example, hugging them

• sexual assault or rape

In the workplace it covers employees and workers, contractors and self-employed people, as well as job applicants.

What counts as a workplace?

The workplace in this context isn’t just “the office”.

If an event or situation is in any way connected with work then it can fall under the workplace… and there could be a claim brought for sexual harassment. That could be a Christmas party, a client event or messaging between colleagues.

What are your rights?

If you have been subjected to sexual harassment you can submit a grievance to your HR department and have the right to have that complaint thoroughly investigated, regardless of the seniority of the individuals involved.

Some companies allow for anonymous reporting of complaints or have digitised systems. However allowing anonymity poses a challenge for HR departments as they cannot operate in a vacuum if organisational leaders are failing to reflect company values or expected standards of behaviour.

What should companies do when someone makes a complaint?

An employer must investigate any report made to them of sexual harassment. Even if there has been a long time between the incident taking place and it being reported, the employer should still take it very seriously.

Companies are increasingly putting policies and procedures in place to try and control behaviour, for example, codes of conduct and policies covering behaviour at workplace events. However policies alone are not sufficient. Regular training for anyone responsible for people management is essential.

What about social media?

The law around sexual harassment is based on the Equality Act 2010 when social media was in its infancy. Employers do need to have clear policies. People do have the right to privacy but also not to bring an organisation into disrepute. With social media messaging, there’ is no legal prohibition, but it’s a really good example of where most organisations haven’t caught up with the changing risk.

What can you do if you are accused of sexual harassment?

If you feel you have been wrongly accused, it’s important to be able to gather evidence – look at the allegations and see if you are able to challenge them. A log of events, transcripts of conversations, witnesses to your interactions are all important.

Employers should not presume the accusation is either true or false. Someone who is accused of sexual harassment should be offered support and sensitivity, so the handling of the complaint is balanced.

What about workplace relationships?

Regardless of whether it is consensual, quite a few companies now have rules around workplace relationships. Either they don’t allow them or if you are in one, you have to declare it.

In a nutshell…

Employers need to be vigilant and ensure they have clear policies outlining the expectations regarding conduct and behaviour. Further, all staff (not just managers) should attend training that aims to raise awareness of workplace sexual harassment because it will provide the necessary tools and information to identify, prevent and, importantly, remove sexual harassment from the workplace.

Further information and advice from nicola.goodridge@goodhr.co.uk or on +44 (0)791787834

Interest in the idea of a four-day working week has been growing recently, following the completion of the UK trial which saw 61 organisations test the concept so that researchers could analyse the impact it had on productivity and staff wellbeing.

How does the four-day week work?

The idea is that employees work one fewer day per week with no loss of pay, often working the same number of contracted hours but over four days rather than five. Its advocates argue that employees can be just as productive, if not more, as staff seek to minimise distractions and benefits are seen in respect of recruitment, retention and wellbeing.

Re-evaluating work

Until Covid-19 hit, the idea of a shorter working week – or even home-working – might have seemed far-fetched to some employers, but the pandemic has encouraged many to rethink the work-life balance and benefits they offer.

The shorter working week is becoming trendy and the trendier it gets, more companies will become more willing to open their minds about it. Employers are also considering ways they could boost productivity, and switching to a four-day week might achieve this.

The other big driver is recruitment and retention. If you are thinking of leaving and your employer offers you a four-day week, you are probably going to stay put for a bit, and in the current market that’s really important.

The challenges

Taken at face-value, the idea of a four-day week seems attractive for both employees and employers, who stand to benefit from more a productive and engaged workforce, but some of the challenges that may be faced are as follows:

• Some staff may have to be upskilled to ensure that some tasks could still be completed when colleagues were off work, and although staff are usually able to choose which day they wanted to drop, payroll staff have to work certain days to ensure employees get paid on time.

• Be prepared to be flexible. If someone says they would much rather work five days and have more holiday because of their childcare arrangements, you need to practice the flexibility you preach.

• Watch out for signs of stress as staff try to maintain 100% productivity in just 80% of the time they are used to.

• Ensure you continue to introduce wellbeing initiatives into those four days, rather than relying on a three-day weekend being enough. With one less day in the office it is important not to lose the team connection and employers need to work hard to maintain those relationships as well as hitting deadlines.

The process

• Employers need to set targets and be really clear and communicate with people around how they are going to judge success.

• They need to empower employees to come up with ways they can deliver the same output in four days rather than five.

• Additional tailored, personalised training and an increase in one-to-one mentoring reviews are some changes made to ensure employees felt supported and capable of achieving their weekly targets in four days.

• Employers also increased team-building activities and moved weekly socials to Thursday evenings instead of Friday to ensure the culture remained strong.
Results of the UK trial

Almost every organisation that took part in the UK trial of a four-day week (92%) has decided to continue with a shorter working week after the pilot saw a reduction in burnout, anxiety, fatigue and sickness absence.

Participants saw 71% of employees report lower levels of burnout and a 57% reduction in the likelihood that an employee would quit their role.

They also saw a 65% reduction in sick days, and staff reported improvements to their mental and physical health, work-life balance and satisfaction with their household finances, relationships and how their time was being managed.

Aside from the employee wellbeing and satisfaction benefits, employers also saw their revenue rise by 1.4% on average.

However, the following is important to note:

• Rethinking the way the organisation does its job is crucial as there is no way that you can reduce your working hours, maintain productivity and not do things differently.

• Trial the short week first and make it clear that it is a trial that may not be implemented permanently and contractual agreements or proof of employee agreement to this may be required so you can revert back to a five-day week should you wish to.

• Many of the reported benefits of the four-day working week are only going to be truly identifiable long-term.

• Decide the way the week will work – will you offer a Monday or a Friday off or allow staff to choose a day not to work? How long will the working day extend by? How will it work for shift workers? Either way productive improvements in advance are required to support the four-day week.

• For some senior staff used to putting in long hours through the week, this four-day week may not work. Employers need to be ready for this.
No going back

Organisations must be absolutely sure they want a shorter week, and that it has a good chance of success, before they announce a trial to staff. “The ‘own goal’ of running it for a few months as a trial and then finding it just isn’t working would be really challenging. You may well lose staff who have enjoyed the work-life balance benefits.

If you are cutting hours, you have to be clear this is actually possible, as the negativity from the team if it just feels like a PR stunt will be hard to recover from.

As we have seen with the arrival of hybrid working, introducing a four-day week would involve a steep learning curve for organisations and employees, and would require some tweaks before the right balance is struck. But there is now enough experience from organisations that have implemented shorter weeks to draw on for learning.

For any further advice please contact nicola.goodridge@goodhr.co.uk or call +44 7917 878384

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