Employment Winter Newsletter 2023

During 2023 the UK has seen greater political stability, in contrast to the turmoil of 2022. And whilst the UK has so far avoided recession, the economic climate for business remains challenging.

Employers continue to experience different labour requirements. Whilst the labour shortage has eased this year for many, some businesses are still facing a skills shortage for certain roles. At the same time, other employers have been carrying out restructuring or redundancies, and we have advised many businesses on planning and implementing these exercises both in the UK and internationally.

One impact of the easing labour shortage has been that negotiating power balance between employers and employees appears to be shifting, and many employers are wanting to increase office attendance as a result. Although hybrid working appears to be here to stay, there is a move towards stipulating a minimum percentage of time in the office or increasing this time.  As a result of both this trend, and also the forthcoming changes to the rules around requesting flexible working (see below), we have advised many clients on hybrid and flexible working issues and have also been updating hybrid and flexible working policies.

Workplace culture and treatment of employees has remained in the spotlight this year. There is an ever-increasing expectation of regulators, clients, investors and the media, as well as employees themselves, that all employee complaints are properly investigated. We continue to carry out significant investigations work, whether advising on the internal investigation, conducting the investigation ourselves or instructing an external third party. The nature of the investigations which we are involved in often concern highly sensitive matters, senior individuals and/or significant business issues. In addition to workplace investigations, we also support on regulatory investigations (e.g. HMRC, FCA or UKVI investigations). More information about our employment investigations work can be found here, and about our wider investigations practice here.

Having an open, supportive culture in which employees feel that they can speak up about concerns without fear of the consequences is an essential part of preventing harassment, discrimination and bullying in the workplace. Given market trends and with the EU Whistleblowing Directive now implemented across most EU member states, we have advised a number of our clients on refreshing their whistleblowing or "speak up" policies and publicising them internally, through information campaigns and training programmes, including "listen up" training for managers so that they know how to handle whistleblowing complaints made to them. Particular challenges can arise in relation to confidential or anonymous complaints, which we discuss in this article in HR Magazine. 

Investigating complaints properly and fostering an open culture in which employees feel able to speak up, are key elements of the environmental, social and governance (ESG) framework, which remains high on the HR agenda. We regularly advise clients on how employment law and HR policies and initiatives can support and contribute to the organisation's wider ESG agenda, and you can see a summary of the main considerations in our flier on ESG4HR.

Even where a complaint has been properly investigated, it is not always possible to resolve it and we are advising an increasing number of employers on defending and resolving Employment Tribunal claims, including by way of mediation.

From next year there will be a new duty on employers to take proactive steps to prevent sexual harassment in the workplace. We have produced a briefing on this new duty and what employers can do to prepare, which you can find here. The FCA is also consulting on new rules around non-financial misconduct, and you can find a summary of the proposals here.

Following the news earlier this year that the Government is planning to limit non-compete covenants to three months in due course (although no date has been given), many employers are reviewing their post-termination restriction arrangements generally. We have been advising clients on amending non-compete covenants in anticipation of the changes and reviewing their other restrictions such as non-poaching clauses, and non-compete provisions in incentive schemes, together with looking at other methods to ensure their business is protected. We have produced a briefing which contains more detail on the proposals and how employers might prepare, which you can find here.

We have worked on a range of international projects this year, including advising multi-national clients on implementing global "speak up" policies, processes and hotlines, to comply with EU and other local whistleblowing laws. Employers which operate in multiple countries are increasingly seeking to align their employment law policies across all jurisdictions in various areas, including post termination restrictions, parental leave and flexible working. We have been working with a number of employers on these projects, with assistance from overseas law firms with whom we work regularly.

In 2023 we reported in our Employment Update briefings on employment law cases covering a variety of topics including:

• bonus clawback
  
  
• non-compete covenants drafting and enforcement 
  
  
• gender reassignment discrimination
  
  
• gender critical beliefs and discrimination
  
  
• holiday pay claims
  
  
• share schemes and TUPE transfers
  
  
• disability adjustments in restructuring exercises  and job applications

2023 has seen the usual round of UK immigration changes and announcements. In October, the application fees for a variety of work-related visas increased. For the majority of work visas, including the Skilled Worker and the Global Business Mobility visas, the fees increased by 15 percent which represents a significant additional cost for visa applicants and their employers. The new Electronic Travel Authorisation (ETA) system is being introduced in phases and will eventually apply to everyone visiting the UK on a visa-free basis for tourism or business (except British or Irish nationals). The ETA has applied to Qatari nationals since November and is expected to apply to all non-British/Irish nationals from the end of 2024, adding extra administration to travel planning.

We have continued to see an uptick in sponsor licence applications for new and established businesses moving employees to the UK or hiring overseas talent to fill a variety of skilled or specialist roles in the UK. As the impact of recent and planned increases to government filing fees for sponsored work visas starts to hit already squeezed recruitment budgets, we have seen employers bring applications forward where possible ahead of the planned increases. Sponsorship and right to work compliance has also been a key focus this year, and we have been assisting clients with compliance health checks, and staff training sessions as well as reviews ahead of the upcoming changes to the civil penalty and fines regime due in January 2024.

• Ailie Murray became a partner in the Employment team on 1 August 2023. Congratulations Ailie!
  
  
• Associates Katie Good, James Wells and Holly Robson all joined the department this year, together with Amar Degon who joined us as a paralegal.
  
  
• Harriet Willis joined the team as a newly qualified Associate in September, having completed her training contract with the firm.
  
  
• This summer we held our inaugural Mock Investigation event, which was very well attended, with interactive engagement from the audience who raised a lot of interesting points and questions. If you would like to watch a recording of the event, a link is available on our Mock Investigation microsite here:   Travers Smith Mock Investigation 2023 | Travers Smith.
  
  
• We recently released our autumn webinar which covers key developments during 2023 and can be viewed here.
  
  
• We also produced webinars, podcasts and briefings this year on a variety of other topics including sexual harassment, non-compete covenants and business immigration updates. These can all be found on our website here.
  
  
• We hosted three separate international events at our office for the Employment Law Alliance, welcoming lawyers from the Asia Pacific, Africa & Middle East, and European groups. These events included interesting panel discussions in the context of the various jurisdictions, looking at the differences in emerging employment law issues, diversity and inclusion requirements, requirements for work permits and cross border employee issues. Attendees also had a tour of the London sights.
  
  
• We wrote and contributed to various articles for the HR and employment law press including these pieces on handling "off the record" complaints, the four day week, workplace romances and  business travel .
  
  
• Our team was involved in a wide range of pro bono work this year, including advising at employment law clinics and assisting charities such as YMCA London City and North, Just Like Us, The Vavengers and Change Agents. We also assisted the award-winning  Green Tech Legal Collaborative, providing legal advice to green technology startup businesses.
  
  
• Members of the team also assisted with volunteering projects, including helping to sort and deliver food for the Felix Project.
  
  
• Finally, in June the team enjoyed a walk and pub lunch in the Surrey Hills complete with their dogs, in beautiful sunshine.