As well as advising clients on employment law issues and the impact of the ERA, we at Bellevue Law also need to think about how it is going to affect our own organisation and people. Like any other business, we need to prepare for the impact of the ERA which will bring about the most significant changes to UK employment law for decades, introducing a sweeping set of changes over the next couple of years.
So in the first episode of a special series of the Bellevue Brief designed to help you to prepare your organisation for the ERA, we thought it would be helpful to talk about how we at Bellevue Law are approaching planning for the changes coming down the line. In this episode, Bellevue Law’s Founder Florence Brocklesby and Chief Operating Officer Kay Osborne sit down to discuss what we are doing ourselves, and provide some practical tips on how you might approach preparing for the changes within your own business.
Key practical considerations
In broad terms, we have identified three key headlines that employers should have in mind when preparing for the impact of the ERA:
- The introduction of the ERA constitutes a significant change management project, and employers should not underestimate the scope and volume of work involved. They should ensure they plan carefully and consider the resourcing and budgeting requirements.
- The changes introduced by the ERA are wide-ranging and will impact employers differently. It is therefore important that employers consider the key legal, operational and financial risks presented to their organisation specifically by the changes, and how to respond, on a bespoke basis.
- Organisations need a structured, proactive project management plan to ensure all relevant issues are considered – including, for example, ensuring all relevant policies, documents and processes are updated, that appropriate systems are in place and effective training programmes are available for line managers and staff
Importance of leadership from the top – the ERA is not just an issue for HR!
As with any significant change management project, it is essential that sponsorship and engagement is led from the top.
Effectively planning for, and embedding the ERA reforms, is not a job solely for HR – leadership engagement and buy-in is essential. Clear strategic decision-making is required to ensure that organisations are able to roll out the changes required efficiently and effectively. It is important that careful consideration is given to the needs, structure and make-up of each organisation to ensure that policy and process decisions are made in a bespoke way, putting the organisation’s culture and values at the heart of any changes implemented.
It is also important to remember that your organisation’s line managers must be trained and supported through the changes you are introducing within your organisation. After all, it is the line managers who will be responsible for applying the new rules on the ground – especially around performance and conduct – and soft-skills training in particular will help your managers to have difficult conversations in a timely, fair and legally sound way.
How are we dealing with planning for the changes at Bellevue Law?
We have already started to consider how some aspects of the ERA will impact our own processes and have bolstered our operations team to ensure we have appropriate resources to deal both with the recent growth of the firm and projects like this.
In the podcast episode we discussed two examples from our own business.
First, we have also taken time to review our recruitment and onboarding processes in light of the upcoming reduction in qualifying service for unfair dismissal claims from two years to six months. Although we already had sound processes for recruitment, onboarding and probation periods in place, we have reviewed and tightened them to ensure we take steps to select the right candidates in the first place, give new recruits the tools they need in their early days with us to be successful in their role and address any performance issues promptly.
By putting in additional time and effort upfront at the recruitment and onboarding stages and then devoting resources to ensure we provide early – and regular – meaningful feedback in the early days of employment, we are able to provide a platform for success for our new joiners, ensuring that our people have the skills and support required to have a successful career at the firm. And taking these steps means that we are also protecting the business.
We also discussed the fact that we are also bolstering our processes in relation to our duty as an employer to take reasonable steps to prevent sexual harassment in the workplace under the Worker Protection Act 2023 to ensure that we meet the new “all reasonable steps” duty which will be placed on employers under the ERA. For example, we are exploring mandatory anti‑harassment training for all staff and consultants and also considering how we can enhance and improve reporting mechanisms at the firm.
The importance of a bespoke approach
As the ERA reforms affect almost every aspect of employment law – from dismissal rights to non-disclosure agreements (NDAs) to working patterns – it is essential that employers take the time to understand their own legal, operational and financial exposure and develop a plan that addresses their own key risks.
Some examples of the key risks that may apply to employers from the ERA include:
- The removal of the unfair dismissal compensation cap: under the new rules, employers who may previously have relied on enhanced redundancy payments to mitigate legal risk, rather than running a fully compliant redundancy process, will face greater legal and financial risk. To address this, many employers will need to ensure they run more robust redundancy processes, for example investing more time in consultation; strengthening their selection processes; ensuring they have robust documentation which evidences the process followed; and ensuring any decisions are defensible.
- The effective ban on NDAs for discrimination and harassment complaints: many organisations have historically relied on NDAs to settle complaints relating to discrimination and harassment privately. However, when the relevant ERA reforms take effect, NDAs will no longer be an option for employers. Instead, employers will need to consider:
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- taking proactive steps to improve preventative measures to stop discrimination and harassment occurring in the first place, for example by improving training programmes and work culture;
- where complaints of discrimination and/or harassment are made, running appropriate investigations into the allegations;
- being mindful that, without NDAs in place, their practices may become public and preparing accordingly for this.
It is also important that employers remember that, while the effective ban on the use of NDAs in discrimination and harassment cases hasn’t yet come into force, it may have done so by the time some current complaints, and issues currently coming to the surface, are resolved. So employers should look ahead and bear this in mind when handling potential issues that are already known about, or which come to light in the coming weeks and months.
The importance of strong project management
Addressing the changes that will be brought about by the ERA is a significant undertaking for employers and businesses are advised to take a project management approach when planning for them. It is critical that businesses assess and provide appropriate resources and time to effectively address the various issues .
There are a number of things to be considered, but in broad terms, employers should be starting to consider what changes may be needed to the following areas:
- Documentation: employers should consider what changes might be required to:
- contracts
- policies;
- handbooks; and
- templates.
2. Operational Processes:
- develop and deliver appropriate training programmes for HR, line managers and staff generally;
- update recruitment, onboarding and probation workflows;
- adjust redundancy and dismissal processes and practices;
- enhance investigation procedures; and
- consider whether changes are required to practical day-to-day processes.
3. People Capabilities: businesses must ensure that line managers understand their obligations and have the confidence and soft skills to apply them -strong performance management capabilities will become increasingly important.
4. Systems and Data: employers should consider whether existing HR systems are fit for purpose or whether new systems should be introduced to help cope with the need to track far more granular data such as new qualifying periods, performance records, working hours (especially with the forthcoming zero-hours reforms ahead) as well as to stay on top of key implementation dates.
Final thoughts – start sooner than you think and resource effectively
In summary, it’s clear that organisations should be considering their key risks and the main issues that will impact them now, putting in place appropriate championship, resources, budget and time to deal with the challenges of implementing the ERA, and starting the systematic planning and project management phase of implementation now.
We hope that the insights into how we are doing this ourselves at Bellevue Law shared by Kay and Florence will help you to do this.
You can watch and/or listen to their episode here: Bellevue Law | Instagram | Linktree
