Return to Work Guidance
The government has turned its attention to helping individuals who have taken a career break return to work (Returners). It has now published guidance for employers (the Guidance) and a toolkit designed to help employees returning from such a break. The toolkit includes tips for Returners on how to build confidence and negotiate salaries and flexibility, as well as providing resources for job opportunities and training.
The Guidance:
The Guidance comes when many businesses are taking steps to reassess and update their policies to align with the post-pandemic working landscape. Returners are seeking flexibility in their working patterns and the same can be said for a high proportion of the UK workforce in general. Research from LinkedIn, found that:
- 33% of UK workers would consider leaving their job if returning to the office full-time became mandatory.
- 52% of women had left, or were considering leaving, their jobs due to a lack of flexibility and that the current demand for remote working jobs exceeds the number available in the UK.
The Guidance focuses on those who are returning to work following a period of time away to “take on a caring responsibility” as well as those returning to work after a period of absence for other reasons, such as ill health or an earlier “retirement”.
The objective is to help individuals get back into work and to help businesses recruit from a pool of experienced people. When it comes to flexibility, the Guidance urges businesses to consider where, when and how much they need people to work. Another point is that, by hiring and supporting Returners, a business can demonstrate that it is “open to non-linear career paths” and that it “values the role that caring plays in society” – a message that can help attract and retain diverse talent.
The Guidance also notes that:
- 90% of non-workers want flexible work
- job adverts received 30% more applications when they were advertised as allowing flexible working (versus those that were silent on that point)
The Guidance suggests several ways employers can support Returners in returning to permanent employment. Examples of such initiatives include:
Returnships– fixed-term contracts with the potential for a permanent role at the end (which can be an effective way of facilitating a trial period that benefits both the employer and employee).
Supported hiring– permanent roles, with adjustments made to support Returners;
Return to practice– sector-based training and work experience; and
Fellowships– supported research and development projects which may also lead to a permanent role.
The Guidance emphasises the importance of businesses spreading awareness of these initiatives internally, whilst also actively supporting line managers who are bringing Returners into their team. Managers should be supported both in terms of training and knowledge-sharing to ensure that the business is taking a holistic approach.
Businesses are being encouraged to actively engage with Returners, seek their perspective and listen to feedback. Support can be provided by allocating buddies, mentors and/or coaches. Businesses should then reflect on any feedback, collect additional evidence and implement reasonable changes suggested by stakeholders.
Key takeaways
Given the increasing demand for flexibility both from Returners and other employees, businesses may benefit from implementing programmes such as those proposed in the Guidance. The evidence clearly demonstrates that the wider the variety of jobs, contract types and levels of flexibility offered by a company, the greater the talent pool from which to hire. Therefore, such initiatives should be seen as “a talent attraction strategy and not just a corporate responsibility”.
Bullying in the Workplace
In this blog, we consider how employers can define bullying, spot bullying behaviour by their staff and take effective steps to address it early.
How to define bullying behaviour?
There is no specific legal definition of bullying, which means it is difficult for employers to clearly understand the behaviours, and patterns of behaviour which are generally understood to amount to bullying.
Employers often adopt a broad definition in their anti-bullying policies, although it is often set out without due regard to the employer’s industry, working environment, culture or practices.
According to ACAS in its guide to harassment and bullying in the workplace, bullying can be described as unwanted behaviour from a person or group that is either:
“offensive, intimidating, malicious or insulting”
“an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone”
This is a good starting point for any internal policy, training or guidance. However, most anti-bullying policies would benefit from examples of prohibited behaviours which relate to the employer’s particular business.
How can we spot bullying behaviour?
ACAS makes clear that bullying can be a regular pattern of behaviour or a serious one-off incident. The guidance gives examples such as:
- spreading malicious rumours about someone
- consistently putting someone down in meetings
- deliberately giving someone a heavier workload
- excluding someone from team social events
- consistently undermining a manager
- posting humiliating, offensive or threatening comments or photos on social media
Employers should be on the lookout for patterns of inappropriate behaviour across the business.
The dangers of leaving bullying unchecked:
Although there is no express statutory prohibition against bullying in the workplace, employers can still face legal liability if they do not take care to monitor and address any behaviour which might amount to bullying.
For example, affected employees could bring potential legal claims of harassment and discrimination on the basis of a protected characteristic under the Equality Act 2010, personal injury, and/or constructive unfair dismissal arising from the employer’s fundamental breach of contract in failing to prevent the bullying:
If bullying is related to any of the nine protected characteristics under the Equality Act 2010 it could amount to harassment or discrimination, for which the potential compensation awarded by an employment tribunal is uncapped and can include an award of injury to feelings of up to £56,200 (depending on the seriousness of the behaviour).
An employer has a duty of care under common law to provide a safe and stress-free place of work for all staff. Prolonged bullying can deteriorate an individual’s physical and mental health, and potentially give rise to a personal injury claim. A victim of bullying could be signed off by his or her GP with work-related stress and anxiety, resulting in long periods of absence from work. For an employee to have a claim for personal injury, they must show they have a medically recognised psychological injury or illness. However, the court has found that an employer will only be liable for an employee’s ill health in the circumstances if it is on plain notice of an employee’s stress, or vulnerability to stress, and then fail to address the issue. Compensation may be significant: the 2022 Judicial College Guidelines provide guidelines of average compensation for severe psychiatric damage from stress at work of between £54,830 and £115,730.
Where an employee feels they have no choice but to resign because of bullying, this could give rise to a constructive dismissal claim based on the employer’s breach of the implied term of mutual trust and confidence. Note that an employer is unable to argue in its defence that it has the same style of management as the rest of the relevant industry.
Practical steps:
Employers can focus on mitigating the risks of bullying and harassment in the workplace through a number of key steps:
- Anti-harassment and bullying policy: Employers should have an anti-harassment and bullying policy in place. This will demonstrate commitment to providing a working environment free from bullying, but also demonstrate the employer’s intention that all staff are treated and treat others with respect. The policy should ideally be non-contractual, allowing employers to keep it up to date. It should cover bullying which occurs at work and work-related events, such as business trips or social functions. The policy should define what the employer considers to be bullying, and it should cover the behaviour of staff, but also of third parties such as customers, suppliers or visitors.
- Training: Regular and effective training in relation to anti-harassment and bullying is a key component of creating a positive and inclusive workplace culture. The whole workforce should understand the contents of the policy and the employer’s behavioural expectations.
- Be pro-active: All businesses should ensure that supervisors are proactive in looking out for behaviour which may be considered bullying by the recipient. If negative behaviours are caught at an early stage, then this could prevent formal grievances or legal claims which might arise if intimidating or offensive behaviour is not challenged. As well as the general training recommended above, consider whether specific training in feedback, supervision, delegation or other management skills should be provided for managers.
- Deal with grievances and complaints promptly: When handling a bullying complaint from an employee who suffered or witnessed alleged bullying, employers should deal with the matter as quickly as possible and in accordance with internal investigation and grievance procedures. Broadly, first talk to the person raising the complaint to understand the issue and what might resolve it. Ensure that you look at the complaint in a way that is fair and sensitive to the person who made the complaint, anyone who witnessed the alleged behaviour, and the person accused of bullying. There will inevitably be sensitivities around confidentiality, the seniority of the individuals concerned, and the likely impact on other employees and the business. A key consideration will also be the necessity of taking disciplinary action against the perpetrator, if it becomes clear that they have behaved in an unacceptable way.
