EP 413 - The UK’s new Employment Rights Act is being framed as a major step forward for workers.

But what happens when stronger protections collide with the realities of hiring, risk, and running a business?

In this episode, we sit down with leading employment lawyers to unpack the biggest changes: from the reduction in unfair dismissal thresholds to new restrictions on “fire and rehire,” and longer tribunal timelines.

For large corporations, these shifts may be manageable.

For SMEs - which create the majority of UK jobs - the implications could be far more significant.

We explore the unintended consequences of well-meaning policy:

Will businesses become more cautious about hiring?

Does reducing flexibility increase risk?

And could this ultimately impact job creation?

This is a grounded, practical conversation about how employment law works in the real world and what both employers and employees need to understand as the rules change.

Chapters:

00:00 New Rights - Big Risks

01:51 Meet Oury Clark's Employment Law Experts

02:07 Is It Good or Bad

03:15 Why This Act Exists

04:45 Top Changes Overview

05:03 Unfair Dismissal Cut

06:17 Tribunal Deadlines Extended

07:20 Sexual Harassment Duties

08:40 Fire and Rehire Ban

10:48 Redundancy Rules Tighten

12:21 Fair Work Agency Powers

13:23 April Changes Rundown

14:50 Unfair Dismissal Deep Dive

17:36 Hiring Gets Harder

19:44 Contracting and EOR Rise

28:34 Tribunals Backlog and ACAS

32:03 AI Fuels More Claims

36:59 Compensation Cap Removed

42:09 Any Upsides to Reform

44:25 Fire and Rehire Explained

45:12 Fire and Rehire Basics

46:04 Five Fair Dismissal Reasons

46:57 SOSR and Business Change

50:38 New Rules and Restricted Variations

53:23 Tribunals and Enforcement Delays

54:42 Performance Management Reality

56:47 Protected Conversations Explained

01:01:21 SSP Changes and Sickness Absence

01:05:20 Occupational Health and Return Plans

01:07:57 Sexual Harassment Duties Expand

01:14:51 Practical Steps Before April

01:19:14 Growth Concerns and Global Competition

01:24:29 Myths Rapid Fire

01:25:45 Final Thanks and Sign Off

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New employment laws, more rights.

Sounds great, right?

But what if they fundamentally change how and whether businesses are at all?

In this episode of Business without bs, we break down the new Employment Rights Act.

What is actually changing, what it means for real businesses, and whether it's going to help workers or backfire completely.

I'm joined by two of Uri Clark's top employment lawyers, Ross Meadows and Jessica Bass, who deal with this stuff every single day.

And let's just say they're not that convinced it ends well.

So if you employ people, plan to hire or just want to understand where the UK workplace is heading, this is essential viewing.

Welcome back to Business without bs, the alternative mba.

And today we are talking about the new Employment Rights act and whether it's actually going to help or quietly make things worse.

Because, let's be honest, more employment rights.

That sounds great.

He doesn't want more rights.

We all vote for more rights.

Sounds brilliant, but reality is often very counterintuitive.

Every extra layer of protection comes with a cost, complexity and a risk for employers, particularly the SME that actually create most of the jobs in this country.

Remembering there's 5.5 million SMEs and only 7,700 companies with more than 250 staff.

And I think, unfortunately, the reality of a global world too.

Now, people can hire anywhere in the world, so it's a bit of a global competition.

So the real question is, are we protecting workers at a time that AI and all sorts of things are putting huge pressure on employment, or are we making businesses more cautious about hiring them in the first place?

To break it down properly, I am joined by two goliaths of the legal industry, Ross Meadows.

Hey, Andy, nice to see you.

Ross And Jessica Bass, brilliant two employment lawyers who deal with this day in, day out.

So let's get into it.

Welcome.

So, I think we wanted to start with let's.

Let's ask you both this simple question in one sentence.

Do you believe this Employment Rights act is good or bad for the UK economy?

Let's.

Ladies first, Jess.

I would say broadly, it's bad.

It just treats SMEs as if they're exactly the same as massive corporations.

Do you think it might be good for larger corporations?

It makes sense.

I think it's easier for a larger corporation to deal with.

Yeah.

And Ross, your thoughts Again, bad.

I think particularly for SMEs, it makes hiring less attractive and reduces flexibility when the whole intention of it is to increase flexibility and make work pay.

That's what the government think.

This is all about making work pay?

Yeah.

I mean, my, I have spent a bit of time looking at it and I got to the end of sort of the overviews of it and some of the stuff on the government's website and I just couldn't quite work it out.

It felt like it is being written by someone who thinks all companies are large and thinks all companies have lots of money and they're large and they can, they can deal with these problems, but dealing with entrepreneurs every day, I was just struggling with it.

It also presumes all companies are evil with some, some of the rules that they're changing, that all employers are nasty and they're trying to rip employees off.

That's, that's what you get and is an unintended consequence of these changes.

That's exactly the sentiment.

I almost didn't want to say I'd felt bad, but that's exactly all.

Because I sit and think, well, the only reason you end employment is you don't have enough work for them.

In the SMEs and entrepreneurial world I live, or they're no good at their job.

Either reason seems reasonable enough to me.

I. E. We need companies that are going to really do well.

And, and I felt like there was a third element suggested in this bill, a third accusation that comes out of maybe some of the P and O ferries, wasn't it, or, or Thames Water, these, these stories.

Even though that wasn't an employment situation for Thames Water, these big evil companies, as it were.

Yeah, absolutely.

And that's, I mean, the fire and rehire changes that are coming in, it is almost directly because of the pe.

Oh, is that where it came?

Yeah, absolutely.

So it's, it's seeing these headline grabbing bad employers and assuming that everybody then in that space is going to, it's going to follow suit.

Whereas actually the reality is most employers are not going out of their way actively to do something that's going to harm their employees.

You want to keep your employees happy.

They're your most valuable asset a lot of the time.

And for what it's worth, for anyone who doesn't believe that's fair enough.

But I don't know an entrepreneur who doesn't care so much about his staff, they care more about their staff, I would say, almost than anything else.

I would say.

But let's get into it a little bit.

What are the three major changes?

Give me some.

Give basic context.

Maybe again, we'll start with you, Jess, as in this thing's become law, it's coming law on 1 April, but not all of it.

Let's just explain that and then if you could give me your top three changes.

Yeah, for sure.

So top three for me would be.

The qualifying period to bring a claim for unfair dismissal is coming right down.

So at the moment it's two years, it's coming right down to six months.

So two years, you can say to someone, here's your notice based.

Sorry, it's not worked out.

Why not?

I don't want to get into it.

Essentially.

Yeah.

So employees at the moment, over two years have the right to not be unfairly dismissed.

An unfair dismissal is one that either doesn't have a fair reason, there's five of those and each reason then has a process.

So to fairly dismiss someone after two years, you have to have a fair reason, you have to have a fair process.

That means that essentially you're going to have to follow a process a lot earlier and make sure that you fit within one of those five fair reasons before or currently until the 1st of January.

You can essentially dismiss somebody without following a full process, without having a fair reason, as long as it's not something that's discriminatory or for whistleblowing or for asserting a statutory right or something like that.

It just gives you that bit more.

Flexibility and we'll get into it later.

But you could read in between the lines there a little bit of what businesses are going to have to consider before these rules change.

For those who are currently under two years but over six months.

And your next one, next one would be changes to the Employment Tribunal.

So what the new legislation does is it increases that time limit to put a tribunal claim in.

So at the moment the limit is for most claims, three months, less a day.

So it's pretty short after somebody leaves employment that's now going to go three.

Months to make a claim.

Yeah, yeah, yeah.

That's subject to a sort of stop clock provision that you have to go through.

So acas, it's called early conciliation.

And what that does is give an opportunity for you to essentially remediate with your employee and try and reach solutions to try and reach settlement.

That time limit is added on.

So at the moment the early conciliation period is 12 weeks.

It's pretty long, so it makes it quite a long time to put that claim in.

But during that period you're actively supposed to be engaging and making sure that you can come to a solution.

That time limit, as I say, going up to six months.

So that that time limit is then going to be extended to six months.

We're going to have to talk about that more because that sounds complic.

And next one is changes to the law around sexual harassment.

So there's kind of two elements to that.

I thought that was already illegal.

It is illegal, but it's on the obligation on employers to take all reasonable steps to prevent sexual harassment happening.

At the moment, it is just an obligation to take reasonable steps.

And that's changing to all reasonable steps.

Again, that's coming in this in October.

There's also a change to whistleblowing legislation, which means that reporting sexual harassment will become a qualifying disclosure for whistleblowing legislation.

Okay, let's unpack that later.

And Ross, if you could give me yours.

And also just give me.

So, okay, so the bits are coming in at stages.

So.

So just on the.

I can't quite get my.

So it's an act, but the details not fleshed out.

Is that the point?

There's consultation on a lot of this at the moment, how it actually works, how it's going to work and does it work?

Do we need to make a few tweaks along the way to.

To a lot of this?

So I think the unfair dismissal, you know, the, the big one Jess raised is, is something that's really set in stone now.

I don't think there's going to be.

Any maneuvers on that.

This is what the yards push back.

And I mean, thank God they were talking about immediate employment rights, which I have yet to find.

Even my most left wing friend, they all say no, it doesn't make any sense.

So I'm like, well, if you guys don't want to do it, you know, but please give me your three.

The big number one for me, the one that absolutely blows me away, that it hasn't got more coverage in the press because this is a big game changer.

Forget about unfair dismissal.

It's fire and rehire.

And what that is is it's known as dismissal and re engagement, where you're trying to agree contractual changes with an employee and the employee refuses.

And under the current law, if you've got sound business reasons and as long as you consult with them and it sounds reasonable, you can make those changes.

Engage fire and rehire someone or even just dismiss them for certain contractual changes, they're known as restricted variations.

It's automatically unfair to do.

So just give us one just before we move to the next one.

So it's very simple, practical example to put that into practice because, fine, Reha.

Sounds terrible.

It sounds like, oh, that's just, that's naughty.

But just give us where you see this in your job.

Just one quick example.

It could be that you want to change the hours of work of an employee.

If you want to reduce by an hour or increase by an hour their hours of work.

If they refuse and you dismiss them, or you say, I tell you what, you're fired, but we'd like to rehire you on these new terms, or they try and recruit someone else because they won't accept the terms, it's automatically on first.

So you, you're basically tied to the hours.

So I could give you an example.

You employ a bookkeeper in a business, they work 35 hours a week.

Because of technology, you only need them 16 hours a week.

Now, that bookkeeper, you could say you're redundant, but you need someone to do the 16 hours.

And if that bookkeeper says no, it's automatically unfair dismissal.

I don't know how this law works where you can find a way around conversation.

You can't have a conversation, say, look,.

It's the inefficiency it causes the business.

We'll talk about more.

Great example.

Next one on your list.

The next one is the reforms to redundancy.

And this is to do with collective redundancy.

So that's where a business is proposing to dismiss 20 or more employees.

So if you're under 20, it's just standard redundancy where you have individual consultations, but when it's over 20, you've got, you need to collectively consult, you need to appoint representatives for the employees.

If there's a risk of 20 or more being made redundant, you've got to notify the Secretary of State of that fact.

That's how serious it can be.

Now, there's a compensation cap.

It's a punitive compensation.

It's currently 90 days pay.

If you don't comply with these rules, they're doubling that to 180 days pay.

And also normally, if you're an employer in the UK with say five different sites across the country, and maybe Every site has 19 people in it, if you did redundancies at each site under the current law, there wouldn't be collective redundancy because there's only 19.

It's a different establishment.

Under These new rules, which I think the plan is from 6th April, it would mean that they'd look at all the sites in total so that it.

You would end up falling into these collective redundancy consultations.

Okay.

Quite complicated and really bigger businesses in a way, or a little bigger anyway in the main.

But if, if you have offices across the country, you could end up inadvertently falling into that compared to.

We'll unpack that more later and give me the.

Your last one.

And.

And the final one is actually this setup of a new new state enforcement body called the Fur Work Agency.

And what they are, I mean I've, I've heard of fur work and in Australian law, you know, they have like the Fair Work act what they are, they'll be able to enforce payments, entitlements such as statutory sick pay and they can actually come into your offices and inspect and see what you're up to and conduct investigations that.

They're a bit like HMRC in a way.

Again, it's not so much necessarily that the idea is a completely terrible idea, but where will you find the time for this?

You're trying to run a business.

You got 10 of you, some agencies turning up saying they want hours to discuss whether you've been fair or not.

You're like, I don't really care about that right now.

We're trying to get some orders out here and run a business just to remind us of those six.

So there's, there's loads of others, are there?

Loads of other detail.

Yeah.

Which runs of the six coming on.

The 1st of April, redundancy reforms, coming to reforms.

The, the setup of this new state enforcement body, the Fur worker agency came into existence.

Yeah.

God help us.

And any of yours.

The whistleblowing for sexual harassment is, is April, but there's some other ones around.

Changes to statutory sick pay from the 6th of April.

So the three waiting days will be removed.

There's also day one rights for certain family related leaves that kind of come.

In from 6 of April as well, paternity and things.

Because usually you had to be what, six.

No, 16 weeks is 26 weeks.

26 Weeks, yeah.

For paternity.

Yeah.

Certain time before that it was very complicated.

Like the 15 week before the expected week, which was sort of someone.

And then they turn around and say, oh by the way, I'm off.

Yeah, yeah.

So maternity, maternity is still day one.

Right.

To the leave.

It's not to the pay and that's what they're moving the paternity leave as well.

So you get a day one right to the leave, but not necessarily to the pay.

I mean, I remember sitting once for hours trying to think, because maternity is such a complex subject, but at the end of the day you've got to make those balance.

So maybe we'll leave that rabbit hole for another day.

But not so much at the forefront of our mind, I guess, in terms of concern.

Well, I suppose it's one of those things that is, you know, it's only ever going to happen with each employee, let's say once a year at maximum.

For how long?

Yeah, yeah, it's exactly, exactly.

So let's start with your big one, Jess.

Let's start there.

So if you hire anyone on the 1st of July, they will be in this lot.

So in practice, what do we think is going to happen and what should we be doing about it as employers?

Well, I think the reality is that employers are going to conduct almost an audit on their staff of anyone.

That's a difficult question.

And I say, what do you think about John?

Is it working out or not exactly.

Is it, is it working out?

Is it a situation that we might have let rumble on for 18 months and see what's going to happen?

Whereas training,.

It was one of those classic counterintuitive.

You've got someone for two years, you're a year in you go.

Well, come on, let's give it another go.

Let's do some training.

We could, we could make this work.

And now you're not.

Six months, not enough time to do anything.

No, it's, it's such a short amount of time to, to build up that kind of trust and confidence in that employee because you don't really, you don't know somebody after six months.

And it's not even really six months under the, under the law, it really.

You'll need to make a decision at five months.

Yeah, yes.

Because you need the notice.

But, and there's an uncomfortable truth in this too that I sometimes I have to think about or clients have to think about is a lot of businesses are high performing.

You know, you're trying to build a real world class business here with competition, global competition.

We're talking about people from cultures who work six, seven days a week.

I mean in India, people, or 996 as they call it in, in the west coast of America.

And nine hours a day, six days a week.

Well, for nine to nine, it's 12 hours a day.

12 Hours a day, six days a Week.

I mean people would just be like, what are you talking about?

That is, if you want to go work in Silicon Valley, that's the deal, you want to do it now you're competing here.

So it's that thing with people that you might be looking at someone say, well, they're okay, they're not bad, but you need someone exceptional.

And that is the difficult thing that goes on.

Early employment, you might say, well, we need them better.

So that's, that's tricky.

But anyway, so yeah, no, I've seen.

And I think you think about things like say, you know, salespeople, if you're reporting quarterly sales figures and somebody, you've only got six months or five months to make a decision on something, you've actually really only got one full sales cycle to get them through to, to make a decision.

And yeah, that's not to say that you, if you keep somebody on, that's, that's, you can still dismiss people, right?

There's still ways to go, go through that.

It just means that you're going to have to follow a longer process and it's going to be, you're going to have to make sure you hit those right steps and make sure that you're following the fair process and making sure that that's the genuine reason.

And it means that it's not going to be as quick to, to go through those, those sort of termination processes.

So yeah, I think the reality is people are going to spend a lot longer on recruiting, making sure they've got the right person from day one.

They're going to be forced to make decisions a lot quicker as to whether that's worked out.

So probation periods are going to become less of a kind of two way.

Do you work for us?

Do we work for you?

Are you happy here?

How's it going to really, we are making an assessment on your potential.

I also know that it's going to be easy to spot people who aren't necessarily great because they're going to have all these six month blocks on their cv.

You're going to see, I mean, if people don't realize this, you've never know.

But when you're hiring someone, one of the, you want someone to stay.

If you see someone's moved every year, the two year period, it was less clear, wasn't it?

It's going to be a bit like, well, they've been moved on three times.

For six months, they failed their Probation three times.

Yeah, exactly.

Somebody's not willing to take that risk on them.

So, yeah, I think it's going to increase, increase those sort of time and costs in terms of recruitment, what might have been a two interview process, it may, may now be a lot longer and it might also include things like a proper skills assessment because you're not going to be able to.

To spend two years thinking for whether.

Whether you can't take a punt.

Exactly.

It's going to remove the, the willingness to take a risk, I think.

And I think the people it's going to impact massively are those at a junior level that are kind of getting in, finding their feet, doing those sorts already impacted.

Exactly.

Like you leave university and jobs are hard to find now.

Yeah.

It's so frustrating because you just think, is this not obvious?

In a way, they might argue, well, that's because we didn't get day one rights, so you don't have the time to choose it.

It's like, well, if you do day one rights, you won't hire people because it's impossible to judge someone from an interview.

It's well known that interview is an incredibly imprecise act.

It's like saying you're going to go on one date with someone and marry them.

It's like, that is not.

That is not a good plan.

I mean, I wouldn't advise anyone to do that.

There's a TV show in it though, I'm sure about.

So it's just counterintuitive.

It's the other thing you can hire overseas, make it too difficult.

I've seen clients say.

They just say, well, I'll just won't hire here.

Well, I think it also leads to other ways of engaging people.

Yes, it might be a bigger rise of employer of records.

You know, these organizations that will.

What is an employer of record?

It's basically an organization that says, well, we'll employ this member of staff for you, we'll run the payroll, we'll manage them and they'll do the job for you.

And I contract with them to provide me labor.

Yeah.

What usually would be the employee of the company is just the end client for the employer of record who has these people working permanently for them or.

Less security, like what happened in Spain.

I don't know if it's still the case, but I remember years back they had a youth unemployment rate of 40% or some insane number.

And then a Spanish business said to me, oh, yeah, but it's just because the employment rules are so strict, you, you don't employ people, you contract for ages.

So you and someone say, well, lock the law down on that.

It's like, well, it's a very complicated subject and one both of us advise on me from a tax.

You, you both from a legal perspective.

But at the end of the day you can vary those terms.

You can say, I tell you what, use your own equipment, work from home, choose your hours, do it as you want, it's fixed contract.

I want you to deliver this outcome, I don't want you to do anything else.

You're not coming to the Christmas party, you don't get our private healthcare, you don't get to come to the do that.

And I'm going to watch you and see if you deliver on it.

And if you deliver on it over time, if I believe that I want you in the team more, I might put it in.

You can't.

I mean, you could try and legislate around that.

But you're talking about decades of law that have sort of separated.

Yeah, absolutely.

I mean, it's been a pro.

The worker status has been a problem that the UK government has repeatedly said they're going to make clearer lockdown and do that.

They haven't.

And it is no clearer because it's complicated and it's so fact specific, you know, to try and get something that fits absolutely every scenario is almost impossible.

I mean, the tax test and the legal tests aren't the same in themselves.

So I mean, what I do know, I think the Employment Rights act, in terms of unfair dismissal and these changes is like I've just mentioned employer of records, but the IR35 companies who do the assessments, who can help you with that, they're licking their lips, they're thinking, great, there's a business opportunity here for us to.

To engage your.

Your staff in a different way.

The other bit, I mean, just to remind people that the.

The gut that from a tax perspective and the tax and the law are separate.

There is something called the CESS tool, which is cest.

I can't remember what it stands for.

Employment Status Test Status Tool.

Yeah.

What was the first word?

Check Employment status.

As obvious as that?

That you can fill in some questions, it can give you an answer, it can tell you from a tax perspective whether or not they feel they're employed or not.

Useful tool.

Be aware that the tool is actually quite flawed.

It doesn't consider mutuality of which is the obligation of someone to give you work.

That is.

That's one of the most key tests to define employment.

That is Tuesday morning Where's my stuff to do?

And if you don't have a duty to give them something to do, then you might not be an employee.

But anyway, useful tool.

I imagine it holds.

How do lawyers see that tool?

Is it used?

Yeah, it's useful.

We tend to use it.

It goes through the right sort of questions, but ultimately it's if an employee or an individual.

Sorry.

Goes to a tribunal and argues that they should be treated as an employer or work worker, the Employment Tribunal will consider that based purely on the facts of what was actually happening.

And I think that's one of the things that we see with using the CESS tool, is that it's only as reliable as the information that's put into it.

So if.

If the reality of that is somebody comes in and does something completely different, the week later, that's going to change.

The very practical example, all three of us, because we all work together, I'm comfortable with, because we've had two years.

We've been quite a long time.

We've had the two years.

Is that regularly between us when we're advising clients?

If we feel it's a bit border, which it so often is these days, with working from home and everything, we would always say, employ them.

Yeah, employ them.

You've got two years.

Yeah.

It might be a bit more expensive for tax, but look after them.

Do it properly.

Don't get lost in it, because I tell.

If it goes wrong, it's a nightmare.

You'll protect your ip, your intellectual property.

We'd make all these points now.

I don't know if that's what we would say.

We would say, oh, commercially, commercially, you.

Might want to take a risk.

You might want to take a risk here because you need another six months to decide.

So contract for six months.

I mean, these are, you know, difficult things that.

That could make the public.

You try and have this conversation in a new, you know, in a public forum and people just say, you're this.

That.

It's like, we all want the greater good for the country, don't we?

We all want great businesses.

I. I've known you people a long time.

You're good people, you care about people, you're very caring people.

We're not sitting here going, well, as employment laws, I would screw them all.

It's just like, literally for the country, we want the best for these businesses, so do our clients.

And so we're just trying to make difficult decisions to build great businesses that can employ as many people as possible and be as successful as they can be.

And do you know what makes a business successful?

You get the right person, you find the right person, they can change your business.

You get the wrong person, they can drag you down and wrap you up in tape work and make this request and make, then do the, the, the confidentiality one.

I mean the powers on hold for the rightly so in many ways.

But you get a bad egg.

Yeah.

And I don't want to be political, but I want to make this government statement, you know, that the Employment Rights act, it obviously forms a big part of the government's broader plan to make work pay.

And they explicitly frame this as modernizing employment rights, reducing one sided flexibility.

You know that that's the approach they think the employers and that's not the case.

That's not the reality.

What is the reality in your view of the balance currently?

I think it's very well balanced.

It's in the employee's favor, I think, isn't it?

Overall, they're still in the employee's favor, but it gives the employer a get out of jail clause where they've got someone, you know, you don't employ someone to then dismiss them.

You want to keep them, you want them to grow in your business and develop.

That's what you know.

I'd say every employer wants to achieve.

I don't know an employee who doesn't.

But you get some bad eggs.

Unfortunately you get bad eggs every now and then.

And having this two years gives you that flexibility to move them quickly, say, look this isn't working out, we need to let you go and you find someone better.

And the other bits of how they've framed it is that it'll improve furnace while supporting growth.

I, I don't see how it can support growth.

No.

I, my worry is that it, it leads to those situations where it's like they're really an employee but you got to contract them.

So break the law.

So well put.

I, I read, I've read the same stuff and you can read the impact statement.

I don't, I don't know what kind of crack people are smoking because it doesn't make any sense to anyone.

I know when you actually are, are honest about these things and look at it with a realistic idea, I think possibly people have never been employers and I think that is obviously a minority of people who are employers.

And just like everything, if you've never been in charge, you've never been the manager, you just don't understand what it's like on the other side of the fence.

Well, I think it Also forgets that people.

These are private contracts, right, between employees and employers.

So you're choosing to enter into that contract, you're choosing the conditions and terms that you're willing to accept.

And obviously, I appreciate it's specific to certain industries and that sort of thing, but ultimately, if you don't like something somewhere and you can get a better deal somewhere else, it is always your option to resign and go somewhere else.

You can walk out, you can vote with your feet.

And we see it all the time where these businesses are not behaving in a particularly good way.

They do lose their stuff, they do struggle to retain, they do struggle to recruit.

And that's an individual's choice to do that, isn't it?

Back to that phrase, we should seek equality of opportunity, not equality of outcome.

This is a kind of equality of outcome that.

And I just can't get my head around the global competition.

I just.

I just cannot get ahead around it.

This company, this country is inefficient.

He's got all sorts of problems.

We've had biggest technological change over the last 20 years.

Productivity stayed the same.

You've got, you know, America building some of the most successful companies in the world.

And we're like, oh, I wish we could do that.

And it's like, they're working996.

What are we doing?

You know, it's.

Look at the competition.

So allow businesses, if they wish to, To, To.

To try and build these, you know, unbelievable businesses and find the.

Find the people who are willing to do it anyway.

It's so.

It's so tricky.

So is this going to jam up the tribunals?

Already has, so never mind.

Well, how is it already jamming them up?

Just because the number of claims have increased dramatically even though the changes haven't happened?

I mean, what we found.

Jess.

Jess can give some really good examples of current employment cases that are taking, you know, some of them are taking two to three years to get to a hearing, where normally it would have been six to 12 months.

I'm confused.

This law's not even law yet.

Why?

No, I mean, we've seen a massive spike in tribunal cases anyway.

So during the pandemic, there was.

There was a big spike, there were a lot of backlogs, a lot of delays and just.

Just haven't really caught up.

The tribunals haven't really caught up.

It's not only a problem in the employment tribunal, it's the UK justice system as a whole.

It's not receiving the funding, it's not receiving the resources it should.

So more and more claims get put in and there's less and less people to actually deal with them.

We're just seeing it take so long to get basic decisions on certain days for documents to be sent out to get and then even to get to a final hearing.

The listing dates for those is running well on.

Why is it.

Why it doesn't serve anyone.

There's a.

There's some countries who do it like this.

I always just feel what are you really trying to do?

Okay.

If it hasn't worked out for you as an employer, they're not good at their job or you don't have enough work for them.

You just, you just want to be able to give them enough money to look after themselves to find another job.

I mean to find a different thing.

Yeah, absolutely.

And I think that that's, that's a part of it is the, is the compensation element.

Absolutely.

And if both parties are willing to accept that, that then you can wrap it up relatively.

Relatively simply.

It comes down to a numbers conversation, doesn't it?

And that's kind of what the idea of ACAS is.

ACAS can't through early conciliation cannot mandate that you have to do something or you don't have to do something.

So it's a, it's a conciliatory body that's sort of set up to help employers and employees mediate.

Yeah.

One of their financial system media.

There's loads of information on their website.

They're a really good resource tool for people.

They have a helpline that you can call if you're not sure about your rights or if employers aren't sure.

They offer sort of specific mediation services.

But the key thing is to put a tribunal claim in.

You have to go through an employee has to submit a request for acas early conciliation.

You'll then be assigned a conciliator who is somebody whose job it is to try and reach resolution for you.

They will then act as they go between the, the employee and the company to see if there's a way to resolve it without going to a tribunal.

But say they're not a decision maker.

They can't force anybody to do anything that they don't want to.

But they try and get to a position where can we settle this?

If so, on what terms?

Great.

Okay.

Is there a lot of lawyers on commission for these things?

For if an employee has a problem, is it, is it like there's no, there's no win, no faith not to just make a reasonable agreement or not so much.

So the tribunal is a no cost jurisdiction, which means that generally if you lose, you don't pay the other side's costs.

If you win, you don't get your cost paid for you.

You can do a no win, no fee agreement in the employment tribunals, but there's big caps on it.

And because you're not getting that cost paid for in the same way as, let's say, a personal injury claim, right?

You see all these no win, no fee personal injury lawyers, they rely on the fact that you get your cost claim from the other side as a, as a claim.

All these tribunals employees can't afford to employ lawyers, can they?

You don't have to have a lawyer for an employment tribunal claim anyone can put a claim in.

Plus there's our little friend AI that comes into play, generating a lot of claims.

So I can take you a tribunal and it's on you to employ a lawyer to file the papers.

How does it work?

You don't have to have a lawyer to respond to a tribunal either.

So the tribunals were set up originally to work without lawyers.

They've become more and more complicated.

The rules are fairly complicated, but to navigate that process is quite difficult.

And you see a lot of people do want lawyers understandably involved.

You don't have to, absolutely, you can do it yourself.

But more and more we are seeing people want that support there.

And particularly as Ross mentions, with the rise of AI and the claims that we're seeing come in that are generated.

By, you lost your job, go home, you chat to Jack GPT.

It will suggest, shall I write you a letter and we'll pour you and let's, let's be an employer.

I think the thing we're seeing massively with AI is that what used to take somebody three, four weeks to get to a point of so putting in a grievance, putting in a claim, putting in those sorts of things where you might go away, you might speak to a lawyer, you might speak to acas, you might speak to your, your friend, your mum, you know, somebody like that, who might sort of say to you, do you think it is that or do you think it maybe could be this or look at it a different way, you can get that in seconds and it will, it will generate, it will create more things, it expands on issues that are there and then it will give you this, you know, very scary sounding, 10 page document that you can submit to A tribunal in a matter of seconds.

And it doesn't cost you anything to put a tribunal claim in.

There's no fees to do it.

It's almost the attitude, if the law is written, considering your big companies, then it's written a way that the employ has got to answer every possible grievance, every possible.

Whereas this, that's my sort of previous thing is I can't get my head around.

There's a country that does it like this, that it's not just we've employed you for less than a year, so you get one month's money.

Employed you for two years, you get two months, three months, four months.

How many years?

Yeah, I mean, that sort of stuff makes complete sense to me.

You've been with us 10 years.

We want to knock it on the head is a year's wages.

Yeah, I mean, it's that and that because ultimately it's money.

I mean, ultimately either the business needs you or it doesn't need you.

Yeah.

And ultimately you need some money.

Yeah.

I mean, I think that where the nuances kind of come in a lot, as with discrimination claims and whistleblowing haze, where somebody once wants a judgment, wants a document that says, actually, yes, this was wrong and you, you treated me.

Because of your race.

Yeah, or, yeah, or, or that.

Actually, no, I would.

I was trying to say that I, you know, I reported that I thought the company was doing something illegal and you punished me as a result of that.

Well, that sounds fair enough.

Yeah, exactly.

So in those sort of situations, so, you know, the comp that somebody gets isn't always going to be enough.

It's not going to be enough to say, okay, well we paid you because particularly in whistleblowing cases, companies don't necessarily want to be seen as paying off whistleblowers.

And certainly whistleblowers that have made that genuine complaint are doing it because they believe in this public interest, this greater good that needs to know this information.

Probably bigger companies could do.

I never forget watching the program on Boeing and there's a terribly sad story.

The guy did the whistleblowing on the 747 Max jet.

He ended up killing himself.

And it's terrible story.

And he whistleblow on the company and that's America.

I mean, that's not our rules, is it?

But I have huge sympathy, certainly in a big organization, if someone's trying to say, look, this is not on.

Yeah, absolutely.

And I, I think it's, it's one of those things that the, the tribunal service needs to exist.

It Needs, you need to have an ability to enforce breaches.

And that's, you know, that's a way to kind of keep people to, to keep businesses to account and to make sure that employees can enforce their rights.

The difficulty that we have at the moment is that the tribunals are taking so long that, that justice is just taking longer and longer and longer for the individuals, but also for the businesses that are then having to deal with that.

You've got, we're saying it's going to be six months plus, let's say a 12 week early conciliation.

So we're nine months before an employee even has to submit that claim.

It's taking probably around a month to get that document then sent over to you.

So we're like you add the AI like you say, you've got loads of time to do it.

Why not make a plane?

And we've got.

Why not?

It doesn't cost you anything.

Doesn't cost anything.

And you've got a month to.

Month to turn around and reply to it.

You've got a month to reply on, on something that.

Because you're a big evil corporation and.

Also your half your staff might have gone by then.

If you're an SME and you know, your managers moved on, your hr, your.

Witnesses have gone, you might have a lot of situations where it's like, I just can't remember anything about this.

So what are you gonna do?

Yeah, who's saying that?

The employer.

The employer saying it was so long ago.

How can I remember?

You know, I'm looking at my notes, I can't really remember every word I said.

So I don't think I said that.

I can't remember every word I said two minutes ago.

Yeah, exactly.

God, it's crazy.

There's no, Isn't it crazy?

There's no proportionality, there's no levels.

Sorry, you want to say, I was.

Gonna say, talking of proportionality, the other change that's coming in the tribunals is the compensation cap is being removed.

So at the moment, unfair dismissal claim have a compensation cap of a year's salary or 118,000.

So.

So quite.

No matter how big the.

Unless it involved discrimination or something else, or even that it was sort of a ma.

Yeah.

Well, what you knew as an employer is if it really wasn't working out with someone that you could turn around to them say, look, even if we spend four years fighting this out in the courts, you're going to get 110 grand.

So how about I give you 100 grand.

Now we just call it.

Absolutely, that's it.

It would imagine this sort of cases, you got these high earners who are suddenly, who probably wouldn't have brought an unfair dismissal claim before because it's just not worth it.

Yeah, yeah, we're earning half a million a year.

They're like, well, you know, professional footballer,.

You know, you're on a five year contract and at the end of it they say, we're not renewing your contract.

Oh, what process did you follow?

I was on 200 grand a week.

You know, he's going to change the landscape completely with this unlimited compensation compensation.

Even if nine months later you're making a claim, but you got a job quickly and you're doing really well.

So, yeah, so that's, that's the, that's the obligation that you still have, which is a duty to mitigate your losses.

So the compensatory award only covers you for your losses, essentially.

So as soon as you've got a new job, providing that it's earning the same or more, your losses stop.

So, and you have a duty as an employee to look for a new role.

It's important to say that, that even though it is unlimited compensation, the tribunal do have to look what's just, what is just an equitable, it's not just a punishment.

So you've got to say, I was out of work for four months.

For those four months, it was a nightmare.

There was no jobs.

Mitigation of loss.

But you would have got notice, you would have been.

But maybe you only got one month's notice.

You say, so you work for the company for nine months, you've gone past six months.

They knock it on their head.

They say they didn't follow a right process stroke.

Well, I mean, I mean, well, how do you knock it on the head, really?

Because things, and unfortunately life is gray.

It's not usually as black and white as we're shutting the department down or you're terrible.

I mean, anyone who's ever been involved in performance, good luck with that.

I mean, anyone who's ever done a, an appraisal and they get the feedback from the team and the team sort of saying, well, we feel a bit like this.

I say to people now, I say, well, give me the example.

Because every time you give an example, say, well, you know, last week this, this happened.

Well, that's not what happened.

That's not my version of events.

It's like, look, I get that, but I've listened to all 10 people work with you and they all kind of said a similar thing, that you're a bit lazy or something.

And so therefore, I'm just telling you the view is you're a bit lazy.

When.

When was I.

It's like.

It's so imprecise, life, isn't it?

Yeah, absolutely.

And I think that's, that's going to be.

One of the key things that comes through from this, is that those sort of performance conversations are going to have to start happening more and more regularly.

It's not going to be enough to sort of just say to somebody I.

That 18 months that their, their review actually turns out, you're not very good at this, because then they're gonna have.

Yeah, they're gonna be well over a year beyond their, beyond their rights to bring that claim.

It's enough to make you lose the air in your lungs.

What is Angela?

I'd love to have a conversation with Angela Rayner.

Like, what does she think?

Why does she think.

I mean, the proof's in the pudding, isn't it?

This is going to come on.

Yeah.

And if we see more unemployment and we see the tribunals crammed up, up, are they gonna.

They're gonna blame AI, they're gonna blame the war in the Middle east, aren't they?

But they should be saying, do you know what, Maybe this wasn't such a good plan anyway.

Sorry, you were trying to.

No, no, no, I agree.

I think it's, I mean, it's, it's, it's important to say this has been.

The review of employment rights has been going on for a while now.

There's been, you know, it's not just the current government that have been lucky in this.

There were reviews that were conducted previously that said that wanted to, to make changes and that sort of thing.

So while I'm, I'm not completely on board with the changes, it's not a new conversation that's happening.

I wonder when you look back at the data, because it used to be six months.

Used to be 12 months.

And then it used to be.

Used to be a little bit of a dance between governments because Tony Blair's government originally wanted day one rights as well, so.

And then they said actually 12 months.

Right.

But, you know, you could look at the data.

Can you say, well, when it went up to two years, it's the Laffra curve.

It's the sort of opposite.

I bet if you look when it went to two years, unemployment went down.

I mean, Ultimately, because it's so important for your mental health, it's better that people are working.

Someone say, yeah, but not under unfair conditions or something.

It's like, blimey.

But you're talking about international competition again, you know, how, how fair is it in the West coast of America?

996.

Everyone would say, well, that's, that's outrageous.

You can't, you can't work.

Talk to my wife as a doctor.

That's how they work.

You know, and the number of businesses that will already outsource is the work because it's cheaper, cheaper labor and, and, and it can be efficiently done in, in places like.

And they don't necessarily have to deal with all these claims and employment bills.

They can turn it on and off as they wish.

Yeah, heavy.

We'll move on to Har.

And we thought.

But it's, I mean, it's, we don't want to be like, oh, it's all terrible.

I mean, is there anything.

Do we feel that.

Okay, maybe.

And, you know, there's some good news about unfair dismissal.

I think for me, the main, the main thing that I think is good is that it will stop situations where you have an employee that has been dismissed 18 months in that maybe for a very legitimate reason that they weren't performing particularly well, but because they don't have that right at the moment, they will try and leverage a claim and say that they whistleblow or that there was a discrimination.

I've seen.

Yeah.

Realize it's two years exactly.

Most probationary period six months.

And they say, well, I passed my probation.

Yeah.

And then they angry.

Yeah, absolutely.

And they're angry.

And they've got no other, other way to put a claim in other than by trying to say from one of these day one rights.

So they, they might interpret facts in a, in a different way or interpret a situation a different way, and that can dilute those very legitimate claims.

Again, counterintuitive, isn't it?

I'm annoyed.

I worked there almost two years.

I lost my job.

Well, under these rules, you've got no rights.

Did any of these things happen?

Well, I could argue one of them.

So let's have a crack.

Let's have a go at arguing it.

Or even in those situations, compensation cap, because the compensation cap for discrimination claims is not the same.

So if you're trying to get a higher amount, could you throw in an element of that where maybe that wasn't.

If some, if, if you didn't.

If you weren't thinking about the outcome, you might not be thinking that actually that's what happened, but it, it, I think it kind of encourages people to think more, more flexibly, perhaps, with the situation and see whether they can fit into one of those boxes.

Whereas I think this will hopefully reduce those claims where actually the facts just don't support that that's what happened.

I think that's a hope.

But many a lawyer will try and throw everything at it initially to get the best compensation.

So hopefully the shift.

I say hopefully, but I think there might be a shift to, let's try and settle early.

Like, look, this isn't working out.

We want to offer you this, sign a settlement agreement.

They have to go and see a lawyer.

The lawyer might say, I think I can get you a little bit more.

And if we're advising the employer, we'd probably just say, make sure you have a little bit of money left over because you might need to negotiate once the lawyer gets involved.

But I think it will lead to more settlements.

Pesky lawyers.

Let's move on.

Har and refi.

Come on, Ross.

So they're talking about cracking down.

What is it?

Well, first of all, what does it mean legally?

Let's just do a little more detail.

So it's fire and rehire.

So what it is, is, is I want to make changes to this employees, or a number of employees, employment contracts.

They've got certain terms and there's not a variation clause in there to change that term.

So I've got to consult with them and I'm explaining the business reasons behind it.

The employee or employees may say, well, no, we don't want to agree to those changes.

So it's a last resort.

It's not used at the beginning going, look, we're just going to.

To dismiss and re engage you.

That's the other term for it.

It's a last resort.

It's.

You try and negotiate with the employees saying, look, this is why we're bringing this in.

Oh, this is why we're taking this away.

How does it work if people have worked for more than two years, you can't fire them.

No, that's what it is.

I mean, I mean, if, under the current law, if you're under two years, you could just say, look, I'm just going to do this.

I'll give you notice under your contract, but you're under two years, you can't claim unfair dismissals and I'll offer you.

A new contract and here's your new contract.

But does this apply also if a team of 10 people and they've all been with you more than two years.

You could find.

So this is what it is.

It's a last resort.

It's.

It's one of, one of the five fur reasons.

It's known as some other substantial re.

Reason.

Right.

Sosr performance.

It could be business reasons, general business reasons.

And, and it could be that this is too expensive.

We need to.

Hang on.

You said there's five.

I've only known there's performance and redundancy.

So there's five.

So there's conduct.

So misconduct.

So.

So you've been a very naughty boy, Andy.

Yes.

And you're fired.

Yes.

You know sugar.

Yes.

You've been taking drugs on the premises.

Whatever it is, whatever.

Again.

Again.

Yeah.

The other one is capability.

So that's performance and, and also it's sickness, you know, if you've got long term sickness absence.

So there's capability which is, covers performance, conduct capability, redundancy, illegality.

So if you find out someone hasn't got the right to work, for example, so you can dismiss.

And number five, some other reason, some.

Of a substantial reason.

So none of those really work.

So let's, let's be creative here and, and come up with something else, you know, and this is where this falls into is flexibility that, you know, like, look, the business has changed.

We're evolving as a business.

We might need nine to nine, six days a week to compete with the US Otherwise this business is dead in a year.

That's what it is, is look, guys,.

We all lose our jobs.

We all lose our jobs.

This means that we can keep our jobs and we're doing it for real reasons.

So in your bookkeeper example, you could say, well, if I don't save that money on the bookkeeping and I've got to keep employing you to do something that doesn't make any sense anymore, I can't actually hire this other person.

I need to and grow the business.

No, it's more on, on in that situation, it's more.

I don't need someone 35 hours a week anymore because technology means it's six.

I still need to give you work, don't I?

So I still, I still want you.

You know, it's not.

If it was technology means I don't need a bookkeeper, then it would be a redundancy because there's no work.

But there's just the reduced requirements.

So we would, we would like to keep you, but you're going to be twiddling your thumbs for 35 and it doesn't make Business sense, you know, there's got to be business reasons behind it.

So now coming in what, 1st of.

April, so this will come in on the 1st of January.

So currently you just need sound business reasons.

You need to consult.

And then you look at other things such as how many employees agreed to this.

If it's.

Does it tend to be the thing people attack too if you get fired under this fifth reason, that tends to be something you're more likely to take your employer to tribunal or not so much.

No, I think you, because you're still.

Working, because you've been rehired, I think.

You still end up with conduct cases, misconduct that I don't think I didn't do that.

So you know, I wasn't naughty.

You know, I didn't, I didn't commit gross misconduct.

I don't think it was.

I think this is just the last resort.

It's not used all the time.

This is where an employee goes, I don't want to really do this, but instead of just giving you the new contract, I'm going to have to give you notice under your current one and give you the other one.

And if you don't accept it, you're fired.

And you gave me, I think, another example you could, the business could be really struggling and at the moment you can sit everyone down and have a grown up conversation saying, look, we're in the ship and things ain't going great.

So I don't want any of you to lose your jobs.

I know you all personally.

But if everyone could do two hours less a day for the next six months while we try and get through this period, cut our costs, reduce your salary, Some people might be like, oh, Carol, do my job.

You know, I care about this business too, because there might not be a lot of options.

If you don't want to do that, that's okay.

But it's, it's that it's trying to, it's trying to do the hole, isn't it?

Yeah, it's trying to avoid what, what the terminal situation is, which is unfortunately, we're gonna have to dismiss you.

We don't want to, but, but we're gonna have to dismiss you.

The problem is, is that what, what was picked up and this is, you know, this is what blew this all up was a P. O.

Case where they had 800 staff that they fired and then replace them with agency workers.

And you know, that is being a bad employer.

So the approach seems to be that, well, everyone's like that and a lot of HR advisors Managers in a lot of businesses in the UK think, well, I don't see how this will apply to us, because they're talking about.

The government talks about unscrupulous tactics, employers that, you know, being underhand, trying to rip people off.

It's not.

This is a last resort where there's no other option, but there's reasonable business reasons to do so.

So that's what the current law allows you to do.

Completely.

Not completely.

So originally it was any contractual change, under these new rules, any contractual change that you made would be automatically unfair unless, and this is the exception, unless the employer is in severe financial difficulty.

And what they mean by that is, we're going under on Monday, not commercially in a year.

We'll probably go under if we don't make these changes now.

So basically, only when you're going bust.

Anyway, when you're going to die, which.

You can do whatever you want anyway because you're importing a liquidator.

So that was like any change whatsoever, any change to the contract would have caused that, even a location change, by the way, we're relocating from London to Manchester, that would have been, oh, you can't do that under these rules.

Now.

What happened is there was a bit of pushback and also, funnily enough, the government was doing the.

Moving the civil service up north.

And I think they realized that the unintended consequence of that, that is, meant that they couldn't do that with their civil servants, you know, the leveling up.

And I'm not saying that it was just for that.

I think there was a reality.

Well, they had a business experience, shall we say?

Yes, they had a business experience and I imagine that the reality was that they were not going to be in severe financial distress if they didn't make that change.

So, yeah, they realized they.

Different definitions.

Yeah, they softened it and reduced it down and there's still consultation on it at the moment.

The rest, these are known as restrictive variations.

These are the ones that will be automatically unfair if you try to fire and rehire, and they concern hours, changing it even by an hour, the hours of work will be automatically unfair.

Reducing holiday and time off would be automatically unfair.

Reducing pay.

So you might be saying, saying, we've got to reduce pay because you're going to be made redundant, otherwise we're going to have to do redundancies that would be automatically unfair.

And changing bonuses, bonus commissions, they, they fall into that and anything else, like location, you know, relocating is.

Is allowable and it follows the.

The old rules.

It's irritating These things that you get these news stories about P and O.

Because piano sounds terrible.

Well, I don't know much about it, but it's.

That is supposed to be what the tribunals are for, isn't it?

That's the system is supposed to kick in to say, that was a bit crappy.

Let's give them all some compensation, let's act quickly, let's help them out.

And the reality otherwise is that at the moment you go, no, let's stop everyone doing that because you can't trust anyone.

It's like, well, okay, so it's going to be really complicated losing a job, really difficult.

The employer.

And they're not going to be able to get a job because no one's going to hire anyone.

Because it's really complicated for employers to hire anyone.

Create a loose, fluid employment where people.

It's easy to hire.

You've got plenty of time to understand and then have tribunals to deal with.

Extreme.

We deal with this constantly in life.

That one bad apple just spoils everything.

It's like, well, you've all got to follow all these really complicated rules now because.

And it's so frustrating because isn't that that very point of a tribunal?

Isn't that very point for a release valve for when crappy things happen?

Well, yeah, and absolutely.

And at the moment that system is failing to be honest in terms of enforcing those rights.

So this.

Everybody feels that, well, these rules are.

In theory, great for employees.

Right.

But if there's no way of holding them to account in a.

In a quick manner where you're going to get a judgment, you know, within a reasonable time.

If you've lost your job waiting four years to get a judgment and get some compensation, that's not justice.

And I can see that this is where this fair work work agency is coming in, so that they can step in support and do this thing.

But ultimately you're still waiting a very long time.

Works almost another tribunal system.

Yeah, it's kind of.

It's allowing somebody else to enforce it.

Part of this too is the whole, you're not allowed to say that Johnny's stupid or that someone's rubbish.

It's the sort of nobody wants the bad news.

And there's this hard truth in life that sometimes someone might want to say to someone, you know, how do you.

How do you push an employee?

We all have done this in our lives.

Our parents have done to this.

All of us at times turn around to each other and say, do you know what, mate?

You kind of caught this up and you really need to sort your shit out.

I love you.

You're a brilliant person.

You know, we say this to each other to challenge each.

It's not all just good news, good news, good news, good news.

I mean, this.

I feel like that world's shrinking, that you won't be able to say, you know, sometimes you need.

Sometimes some people need a bollocking.

Doesn't mean you need to shout them, but it needs to be like, not okay, isn't it?

I mean, and look, there's nothing in these, in this act that stops that.

It's just more likely that someone might say, by what you did, I've been unfairly dismissed.

Yeah, yeah.

You know, that could potentially be it.

But I. I think you can still performance manage people.

And what it probably brings to the forefront is having a performance management process.

And also, again, back to the settlement point, it might be earlier in the discussion.

I've never seen any client performance someone out.

But I'm not in your job.

Yeah, no, we do see it, but it's very difficult.

Or not so difficult.

It's difficult because little things like, like if they go on, they.

They end up going on long term sick, you know, they play.

I'm being stressed out.

Yeah.

I'm putting pressure, I'm stressed.

I'm off work now.

So you can't continue that performance review process.

And, and they'll put obstacles in the way.

Isn't it more human to be able to say to someone without having to do that too, to just say someone, look, here's a check of money.

I'm really sorry it's not working out.

Not like I'm on your case for something.

And to that point, obviously, where it was two years or under absence discrimination or whistleblowing risk, you'd say, you'd say to the employer, maybe commercially, rather than go through a performance review process, it might be better to cut your losses because are they really going to improve?

We still have the protected conversation.

Yeah, that's the other point.

Yeah.

So this was brought in by the Conservatives and it's just an extension of without.

Without.

Let's have a without prejudice discussion.

Now, to have a without prejudice discussion, you need to already have a.

Which means it can't be quoted in court without prejudice.

Yeah, that.

It's confidential.

You can't say, oh, this is what they did.

But to be without prejudice, you've got to have a dispute already.

There's got to be a grievance in the.

It can't be.

Look, we haven't fallen out at all yet, Dave, but I want to give you this offer and exit.

So what, that's what the protected conversation allowed is that, look, you haven't really done anything wrong, there isn't really a dispute, but we just feel that it's not quite working the way we want and we'd like to have this protected conversation now.

Protected conversation only covers unfair dismissal claims, so if it was discrimination, they could still bring that up in court.

But that's the whole purpose of a protected conversation was let's have a chat about this, let's come to an agreement.

And, and that.

And, and to that point, that's pro.

There's probably going to be more of those discussions taking place now.

I'm delighted and amazed they haven't taken it away.

Why?

Yeah, I mean, it is.

It.

It does the same thing as ACAS in terms of early conciliation, doesn't it?

It's giving you an opportunity to, to resolve something without clogging up that tribunal system even more.

And if no one's done one of these.

Extremely effective and honest tool, because it's without prejudice, so you can be truly honest with the person and nice and have a check and say, it's not working out, I just want to sit with you on this park bench and I want to tell you.

And then they go, why you say that?

I'm going to tell you the truth and these are the things and you might not agree with them and that's fine.

But look, we, we do want, we want to care about you.

You can say, we're.

We're the meanies, you can resign, you can do whatever you want, and I'm putting a check on the table for 30 grand.

You got 10 days to decide.

Yeah, absolutely.

And there's, obviously, there's a code of practice that ACAS has got around having these kind of conversations and around settlement agreements generally.

And if you go and you sit down and you say, you've got to take this cash or tomorrow I'm sacking you, then you're not going to get that protection because that protection only exists as long as everybody is, as you say, fair and you're making an offer and you're not saying to them, we are definitely going to get rid of you.

But what you might be saying is, is there's nothing at the moment, there's no process.

But it might be that if we can't agree something, come next week, you may be moved onto a performance improvement plan.

Yeah.

And it could lead to success.

And that could lead to if you don't improve.

Because the whole point of performance improvement plan is actually to make sure that they do improve.

If somebody doesn't then your end result is that you can terminate.

It's that balance and really difficult conversation.

You're both doing really well but it's surely everyone should try their best and best is a very high bar.

Are and in every job are you really giving your best?

Well, probably not.

It's a job.

It's like I don't know if you've seen the stats of engagement.

England, Britain has the lowest engagement in all of Europe.

It's 1 in 10, 10% of employees are truly engaged in their job.

I don't blame them.

It's a job, you know, why should I care half the time?

But that level at which you want, you want to be able to push people to try hard so we can build world class businesses.

It's not like I want to get everything out of you because I'm a greedy employer and I just want all this and profit.

It's like most businesses don't make lots of money.

Most businesses in this country struggle to scale.

There are very few that get any decent size.

We struggle to create world leading companies these days.

We struggle to do this.

So if we can allow ourselves to push each other.

We all need to push each other, don't we?

I don't know, it just that balance that, that, that tension needs to be there of like well I am going to try.

I'm gonna, I mean I grew up with my bloody dad, my boss and he kicked my ass so many times, I can't remember because he can because he's my dad and I, I hate, hated it but he changed me and made me a better person for it.

So yeah, I mean my question is how, how can we support growth?

Well there's, there's, there's things you can do in terms of innovation and investment but you, you got to give tax breaks to companies.

You know, that's a separate, completely separate discussion that, that could create innovation and, and actually make things like this less of an issue.

But, but if you don't have that, that at the same time, if you don't have that all joined up, I don't know how any of this will create growth exactly.

And I mean it seems like the day one ssp, right.

So you don't have to wait for the three days anymore.

So the statutory sick pay.

Statutory sick pay, yeah.

So it used to be that there's three day waiting period before statutory sick Pay starts getting paid and that's gone now.

It's from day one.

And also the lower earnings cap is being removed.

So it used to be.

I can't remember what the cap was off the top of my head, but it used to be a cap.

So actually the cost was lower.

Now if you're a small, particularly if you're a small business, you're employing people on minimum wage or just a bit above, you're gonna see a big hit on your.

On your sick pay.

Let's just talk about ssp.

Cause we had a conversation.

Cause I confused myself.

So technically if someone takes a pay takes a day sick.

This came up in our last podcast.

You don't, you don't need to pay them for that day.

No.

You just pay a statutory pay after three days.

Days statute six day kicks in.

Is that right?

Yeah.

Day four.

Day four, yeah.

Now, most employers I know do pay from day one.

Probably pay at least a week's full pay.

I'd be amazed if I've got a client who.

You've got a day sick.

It's sort of taken as read that you're going to get sick some days.

Yeah.

We're not going to adjust your salary.

So does this matter underneath it.

I think it's, it's the really small businesses like your hairdresser or that sort of corner shop where maybe they don't.

Because they're, They've, you know, maybe they.

Don't pay when you don't come into work.

Yeah.

Because they can't afford to.

They can't afford to make that marginal difference.

Yeah.

And that could be the impact.

Yeah.

Particularly if you've got somebody that's hourly paid as well.

It makes it, it does make a difference in that situation because you know, if you're salaried, going through the kind of.

The, the faff of.

Of calculating that day and deducting it is probably harder than if you are hourly and you can spend.

See, very easy.

Okay.

Well, eight hours work is.

Is to me the bigger problem with sickness is.

And again I know this to my wife is an NHS GP is you go to a GP and say you're stressed because they're not connected to the employment and because it's.

They.

She says it's the.

It's unfair to ask us because.

Which literally you tell me that I will sign you off.

Signs off my job as a doctor.

I don't want to be accused that this person ended up.

But it's, but it's, it's proven very, very clearly proven the worst possible thing for your mental health is not to work or the best thing for your mental health is to work.

So as you say, there's this problem where you start sort of saying to someone they're not, maybe they need to try harder.

They get naturally stressed and that's difficult for them, but then they get signed off and then they become depressed.

It's that pattern that's.

So this essay, the media pay from day one one.

Am I being casual to say, well, do we really care?

I mean the small, very small businesses.

I think for small businesses, maybe it'll wake a few businesses up to manage sickness absence earlier.

Because sometimes how do you manage it?

What do you do differently with sickness?

It's getting them, making sure they do call in or getting an explanation of what is the sickness so it doesn't turn, turn into a longer term arrangement.

So, so you want to get on top of it and find out what's going on.

How can we get you back to work?

It's a bit like get private healthcare, even though it's going up 20% a year, so watch out.

But get your employees a way to get instant GP access so they can get that.

Because again, just as much as I don't like categorizing employers as bad people, employees aren't bad people.

Most people are really good people.

They want to work, they want to turn up, they don't want to be these things.

But.

But yeah, if they go to a doctor and the doctor says, well you, you.

Because the doctor says you can't work, I think they say you're signed off, you're not allowed to work and.

Cause we have it with staff when it happens and they're like, I really want to come in, Andy, to be honest, but I'm not supposed to, you know, and I'm, I have to say I'm very sympathetic when people get burnout or they've gone through a lot, it's like, look, just get yourself well but keep exercise, eat well, come back, start working when you can, isn't it?

Don't, don't just sort of, of drop into the ocean of depression.

Yeah, absolutely.

And I think that's where, that's where things like occupational health are really useful because they will give that guidance.

What is occupational health?

So it's a service that you as an employer can send your employees to to get a medical report specifically about things connected to work.

So specifically about whether, how to get that person back to work, what needs to be in place for you as an employer?

To do that.

So whether that be a phase, return to work.

So they come in, this isn't going to your gp, this is going to a specialist occupational health.

And then who pays for them?

The employer.

The employer pays for it and they're.

More incentivized to get them back to work.

Yeah.

You as the employer can ask specific questions, but the whole thing is essentially how do we get this person back and doing their job?

And are there any things that we need to put in place to disability.

Adjustments because something's happened, they've hurt themselves.

Yeah.

So it covers not only sort of in that situation where we say about stress or that sort of thing, but let's say somebody has a disability under the equipment.

Occupational health can give suggestions for reasonable adjustments that might need to be made.

So, you know, flexibility requirements or if they need a piece of equipment that might support them doing their job better.

But one of the key things that we quite often see put into an occupational health report is if somebody's off sick because they've got a pending process over them, be that a disciplinary, a grievance, capability.

Actually one of the best things for get over that stress, resolving that stress and parking it is to go through that process and to have some sort of finality to that process because it does extend people's worry and people's stress when that process is hanging over their heads and when it hasn't been resolved.

And you look, I remember learning about this from an Australian, who's a British guy, lived in Australia, wanted to change the system here.

But when you have insurance based health care, the insurance companies don't want to pay lots of money, they want you back in work.

So it, and it, it's in everyone's interest.

They're like, right, what do we need to get you back to work?

What do you need?

Is that what you need?

You know what, what do we need to put.

It's not like stick you back in work when you can't work, it's just like, how are we going to get you from here back to work?

Is it phase return to work?

There's all different things to do to bring people back into the workplace.

Let's get you fixed, let's get the surgery done, let's do whatever we need to do as quickly as possible.

Because every day you're not, we're all paying for you.

And actually that's what happens in society, isn't it?

People need to work, they need to earn money.

Of course they, we actually all need purpose.

Purpose, yeah, without purpose.

We're all buggered.

And frankly, some days it can be hard to find purpose for people.

Say we, you mentioned sexual harassment, Jess, and you mentioned that at the moment businesses must take reasonable steps.

So at the moment, what does that mean?

It means education and.

Yeah.

It's training what is or isn't sexual.

And what to do in terms of reporting what is considered acceptable behavior, what isn't considered acceptable behavior.

Behavior.

And also sort of looking at your, looking at your workforce and seeing where those risks might be in terms of if you've got people working alone or have you got people going out.

Oh yeah.

You gave the example that if you, if there's an alcohol fueled evening and is a difficult situation, then let, I mean the training would be, well, let's all be aware for sure crazy things happen when people are drunk.

Yeah.

So.

So the law, the law at the moment is to take those reasonable steps.

It's changing.

First part of that change is coming in in April, which will make with reporting sexual harassment a whistleblowing offense or protected, protected disclosure.

So, so whistleblowing means you can't.

If I don't even know how to whistleblow, how do you whistleblow?

You, you, you, you tell, you tell someone senior in the organization or you tell a third party that has responsibility.

You use the word whistleblow.

You don't have to.

No, you don't have to.

So they say it was a sexual harassment.

Let's say I thought the company was doing something illegal.

I go to the boss and I say you're doing something illegal.

Yeah, yeah.

And then if you are dismiss or treated badly because of that, that's detriment because you, you blew the wall.

Well, you're then protected, compensation accepted.

So now the same applies for sexual harassment.

So I go to the boss and I say I've been sexually harassed.

They actually always, it always has.

This is the thing they've just said.

They've just spelt it out.

Okay.

I was going to say, I can't believe the boss says no, you weren't fired.

Yeah.

The reality is, is that, that, that has existed forever in some sort of form because one of the things that you have is that somebody's breaching their legal obligations.

Well, the obligation to not sexually harass somebody is in the Equality Act.

So actually that's already there.

And it's also, if you're reporting a health and safety breach, well, you could quite easily say that.

So now when we have our Christmas party or our winter parties, we now do highly recommend you Move it in January or February, everyone.

Anyway, we will say, please drink responsibly, which is a little indication towards.

Well, actually, what we've got to do is take all reasonable saying, now I'm.

Going to say no Christmas Spy.

That would be.

Yeah, I mean that would be the sort of.

These things happen.

Well, the law is coming in in October that says that, that you must take all reasonable steps.

And so actually, although that.

No, they've actually said in the last few weeks that they're going to move it to October 26th because people said, well, how.

How can we deal with a law if we're not told or given guidance.

So October 26, originally they said, we'll get the guidance to you by October 27th.

And everyone went, well, how are we supposed to explain that?

We took our reasonable.

Yeah, reasonable steps.

But yeah, they've moved it forward now.

You know, I have, I have some personal experience in it.

Not to go down that rabbit hole, but it was at social events.

So they do seem the danger zone to me.

They are the danger zone.

And the, the law again is making it so that it covers third party har.

Harassment as well.

So let's say you've got, you're sending an individual on site and somebody on that site that you don't know, you've got no control over this third party whatsoever and that person, that your employee comes into contact with them, you have an obligation to take all resource steps to stop third party harassing your employees.

That's impossible.

There's an example here.

You're a professional footballer and the fans are giving you abuse, calling your family, your wife.

That is third party harassment.

It's impossible to stop.

That could amount to sexual harassment.

That can be the situation.

And there's probably been examples over the year where you, you bring a comedian into the office party, third party comedian makes some really risque jokes and that could amount to sexual harassment.

Oh, that could amount to sexual ass.

What?

Making sexy jokes.

You get Bernard Manning, you know, into the, into the, you know, mix.

Am I allowed to say I kind of found some of his jokes funny?

But anyway, which you can at home.

At hand, yes, you allow,.

But it's going to be a case that people have to look at their own workplace, look at what the risks are put in policies put in training and then take steps to try and try and get rid of those risks.

I think it's again, being so severe when these bad, terrible situations go on, they must be horrendous for someone.

And I hope that person gets punished the hell out of it.

And it should be a whistleblower.

It should be, I can tell anyone, help me, this thing's happening.

So I am really sympathetic to all of that.

But again, you.

These who are out there, they're few and far between.

I mean, I think if something happens like that, it's how you as an employer deal with it as well.

And, and that you support.

What is your advice to that?

You've got to.

You've got to support.

Be on it.

Investigate.

Can you.

The moment you sell someone comes into your office and says this awful thing happens last night and they're in tears or whatever, or they just go off sick and they don't want to talk about it and you find out what's happened.

Can you immediately.

Because it's conduct.

Can you immediately take that employee?

Well, how do you even deal with it?

It could be suspending an employee whilst.

While she investigates, you investigate.

You don't know for sure.

There could be something else.

Organizations, you keep them apart while.

Whilst you investigate.

And you've got to do that way open.

And it's.

It's all about communication as well.

Agreed.

And you know, ultimately the complaint of sexual harassment doesn't mean automatically, okay, we.

We 100% are agree that this happened and therefore the person you've complained about has to be dismissed on the spot.

Ultimately, that person still has rights as an employee.

They have the right to be if they've got unfair dismissal rights put through a process.

But it's that balance as.

As sort of.

Ross says, you have a sense often, don't you?

Because if we could think of people in our lives who are very special, wonderful people and someone.

If someone came up to me and told me that they'd done that, I would just say it's.

It's not possible unless you show me video evidence.

You would have a.

But there'd be other people.

They'd say that and I'd be like, yeah, I could totally imagine that.

I've seen them after they've had a few drinks.

So I know a little bit how their brain works, you know.

Yeah, absolutely.

And I think.

I think the key thing, as Russ has said, is it's that communication aspect that's showing the support and it's showing the channels for people to go through to.

If a community complaint arises, who do you speak to?

Are you confident it will be handled quickly, securely, confidentially, that you're not going to be marched out the door yourself just because, let's say you're in a junior position and the person you're complaining about is the highest performing salesperson in the business.

You want to make sure you've got that trust in your employer.

And unfortunately that, that's, that is sometimes what happens and that's why these protections are being.

You know who to call us.

Yeah, let's round these things up.

I think, unless there's lots of detail on this law.

But let's just try and say what are the three practical things every business should try and do before April?

I mean, you can do one each or three in total.

Just tell me what are your top tips?

So, Ross, let's start with you.

What?

What?

Give me April's a moment away.

You will be.

This podcast comes out on the 1st of April.

So it's the 1st of April.

April, what do I need to do right now?

Review your contracts.

Look at those contracts and look for what if there's clauses that actually says we do X and we've never done that, you need to make changes.

I think you need to look at, particularly with these restricted variations.

You need to introduce variation clause before the first.

So the class example being we recommend private healthcare to our clients, but have it as something that you can take away because costs are going up 20% percent.

You could cripple sometimes 50% more.

Depends on your scheme.

You could cripple your business overnight.

So put it in there to say, I could adjust this policy.