The Changing Workforce Managing an age diverse workforce

2. The Changing Workforce Managing an age diverse workforce Lisa Ellis lellis@acas.org.uk

3. Facts & figures • By 2024 half the adult population and a third of the workforce will be aged over 50 • 82% of over 60’s plan to continue to work after 65 • 51% plan to work part time • 18% plan not to retire at all

4. Generational defintions • Baby Boomers born between 1946 and 1964 • Generation X born between 1965 and 1980 • Generation Y (sometimes called “millenials”) born between 1980 -2000 • Generation Z born 2000 and after

5. What’s the difference?

6. Unconscious bias What is it? What are the effects? What can I do about it?

7. Recruiting younger workers Increase the diversity of your workforce Reach new audiences Build for the future Explore non-traditional methods of recruitment Have open and fair recruitment exercises http://www.bing.com/videos/search?q=acas+lego+you+tube&view=detail&mid=3617702141AA59D499333617702141AA59D49933&FORM=VIRE

8. Retaining younger workers Good induction Training and development Career development Consult employees Flexible working options Reward scheme

9. Health & safety • According to the Health and Safety Executive (HSE), employers need to consider the following: • carrying out risk assessments routinely, not just when an employee reaches a certain age • assessing the activities involved in jobs and modifying workplace design if necessary • making adjustments on the basis of individual and business needs, not age • modifying tasks to help people stay in work longer • allowing staff to change work hours and content

10. Absence management • Return to work interviews • Short and long term sickness absence • Absence management policy • Disability Discrimination – reasonable adjustments

11. Other considerations • Abolition of retirement age • Succession Planning • What information can you ask for? • Overlap with younger workers’ aspirations • The Equality Act 2010

12. Use of words Wrinkly Yoda Bit of a kid Bubbly Codger Biddy Which words are acceptable? Parttimer Young’un Mature Whizz kid

13. Age Audit Toolkit

14. Future options for managing an age diverse workforce • Informal practices • Mentoring and Reverse Mentoring • Career Reviews for the over all • Generations Networking – bringing people together to share experiences and ideas as well as break down intergenerational differences • Flexible working, sabbaticals and short learning courses • Using technology to change traditional working practices

15. Contact me directly Lisa Ellis lellis@acas.org.uk 0151 728 5656 https://Linkedin Lisa Ellis

16. The Changing Workforce Possible Legal Issues Peter Byrne Employment Partner

17. Considerations • Discrimination • Working Relationships • Flexible Working • Technology/ Social Media • Sickness • Performance • Protection of Business

18. Discrimination • Equality Act 2010 • Protected Characteristic – Age • Works across the age range • Experience/ Too experienced?

19. Direct Discrimination • Direct discrimination • Subjecting employee to a detriment because of their age • Roberts v Cash Zone (Camberley) Ltd and another The claimant won her age discrimination claim after showing that her line manager had referred to her as a “kid”, and even described her as a “stroppy teenager” • The employment tribunal found that, when the line manager referred to the claimant’s age, a stereotype was used that was related to age

20. Indirect Discrimination • Indirect discrimination • Applying a policy, criterion or practice that causes a detriment to the employee because of their age • Capable of justification • Example – retirement policies

21. Indirect Discrimination • In Homer v Chief Constable of West Yorkshire Police, Mr Homer had been a police inspector for 30 years before joining as a civilian legal adviser in 1995 • In 2005, in order to improve recruitment and retention of suitable candidates for legal posts, the police introduced a new policy under which only those who had law degrees could achieve the highest increment on the salary scale • Mr Homer was 62 at the time the new policy was introduced and it would have taken him 4 years to complete a law degree. This was a year after he would have reached the police's compulsory retirement age of 65 • He was rejected for a final increment on the salary scale because he did not have a degree and although he had exceptional experience in criminal law, the police felt obliged to follow their new rules • Could not justify policy - discrimination

22. Discrimination • Victimisation • Being subjected to a detriment because of the way the employee has been treated • Section 27 Equality Act 2010 • Harassment – Section 26 EA 2016 • 'unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual's dignity or creating and intimidating, hostile, degrading, humiliating or offensive environment for that individual'

23. Discrimination • Equal Opportunities Policy Policies • Training of managers and employees • Disciplinary hearings if necessary

24. Working Relationship • Take a wider view what works • Conventional Employment Contract • Fixed Term Employment Contract • Zero Hours Contract • Self Employed Freelance Contract

25. Flexible Working • Right to request flexible working • Applies to all employees with 26 weeks continuous service • Only 1 request in any 12 month period • Procedure • Refusal • Permanent change/ Trial

26. Homeworking and Remote Working • Management issues • Health and safety and Working Time • Data Protection • Confidentiality • What happens when contract ends?

27. Technology and Social Media • Need clear policy – business use /personal use • Access to employee’s social media • Consequences of breach clearly stated • Contact list ownership

28. Sickness Absence • Assumption older employees may have more sickness absence • Consider amending any potential triggers for Absence management • If not, be prepared to justify the PCP

29. Performance • Take care at both ends of the spectrum • Inexperience – provide training and support • New Technology – provide training and support • Review reasonable expectations

30. Protecting your Business • Intellectual Property • Confidential Information • Implied/Express Confidentiality clause • Restrictive covenants • Return of Company Property

31. Employment Law Update Peter Byrne Partner Taylors Solicitors

32. Worker Status • Uber Decision • Drivers who provide services to gig economy • Uber operated significant control on the worker’s activities – hence not self employed • Entitled to paid annual leave, minimum wage and maximum working week • Not entitled to employee rights of UD, Redundancy, TUPE

33. Holiday Pay • Quick confirmation if needed • British Gas v Lock now decided by Court of Appeal • Conclusion – when calculating holiday pay, workers are entitled to be paid an amount that reflects the commission they would have earned if not on holiday • Specifically avoided the thorny question of how this is actually calculated

34. Dismissal • Sandlev Adecco • Can a dismissal be implied by the inaction of an agency employer to find work for an employee? • Employee worked on assignment for third party company. When assignment ended, the agency failed to take any steps to find her other work • Employee made no attempt to contact the agency • Brought claim for unfair dismissal

35. Dismissal • Sandle v Adecco • No communication of dismissal • No resignation • Therefore, no dismissal • Cannot imply dismissal by inaction of employer • Therefore, still employed when claim brought

36. Dismissal • Branara v BBC • Final written warning already issued • Further misconduct occurred • Final written warning was manifestly inappropriate • Employer should have disregarded it • Reliance upon final warning for dismissal that was inappropriate could give rise to unfair dismissal

37. TUPE Service Provision • CT plus (Yorkshire) CIC v Stagecoach • Park and Ride closed after competitor set up in competition • Was it TUPE? • No – Stagecoach were carrying out a commercial venture • The Council was not the client as required for Reg 3 TUPE and Service Provision change

38. TUPE Service Provision • Salvation Army v Bahi & others • Claimants were employed by a charity to provide support for the homeless • Definition of Activities • Must be given its ordinary everyday meaning • Balance between being too general and too particular • Fact specific – but held a SPC to the Salvation Army

39. Discrimination • Lee v Ashers Baking Company • Company cancelled order for cake with caption “Support Gay Marriage” • Owners were devout Christians who believed that gay marriage is sinful and cancelled the order because of that belief • Benefit of the slogan could only accrue to gay or bisexual people

40. Discrimination • Lee v Ashers Baking Company • Owners would not have objected if the slogan was “Support Heterosexual Marriage” • Owners right to freedom of speech was not infringed • Nobody could conclude that the slogan expressed the bakers’ opinion – icing witches on a Halloween cake does not support witchcraft • Could not refuse to ice cake with a particular religious or political message just because it conflicted with their views

41. Disclaimer The laws in relation to this presentation are complex and the presentation, slides and any accompanying hand-outs are not legal advice.

42. Please get in touch… Peter Byrne Employment Partner peter.byrne@taylors.co.uk 07739 945189 01254 297920 or Find us on LinkedIn – Taylors Solicitors – The HR Exchange Twitter - @TheHRExchange