Employment Law Coffee Break | Quiet quitting, living wage and right to work changes – Osborne Clarke

Welcome to our latest Coffee Break in which we look at the latest legal and practical developments for employers

Should you be worried about ‘quiet quitting’?

Recently there has been much talk of “quiet quitting” – it has followed on from “the great resignation” as the buzz topic for employers and employees; but what is it? and should you be concerned about it in your workplace?

In many ways, quiet quitting is part of the same movement as the great resignation – both are consequences of employees reassessing their work-life balance and taking steps to address it. The Covid-19 pandemic changed the world of work both in terms of where people carry out their work, through the increased prevalence of flexible and hybrid working, and in terms of the extent to which employees are prepared to sacrifice personal time and wellbeing to meet the demands of their role and any promotional or other career benchmarks and goals.

Quiet quitting might mean different things to different people and could be “not taking work too seriously”, “prioritising wellbeing”, “seeking a better work-life balance”, “working to rule” or “doing no more than is needed” to avoid performance management or misconduct proceedings.

In most cases, quiet quitting is delivering what a contract requires, but not taking on additional work out of hours, tasks outside usual duties or generally going over and above what is required. There is a new wave of employees questioning whether doing more than their contractual duties should be a prerequisite for promotion or for showing commitment to their work; should delivering what they are contractually obliged to be enough?

Why do employees quietly quit?

Quiet quitting can be an indicator of something more than an employee just wanting to strike a better work-life balance. An employee whose work patterns, productivity or attitude noticeably changes may be reacting to a challenge in their private life or have become unmotivated or disenfranchised by some factor in their work-life (such as a change of management, their work going unrecognised, feeling poor compensated or otherwise being overworked and/or feeling undervalued).

Spotting quiet quitting either in an individual or among broader sections of a workforce is perhaps more challenging where hybrid or flexible working patterns are common. Some indicators include: a lack of enthusiasm, missing meetings, disengagement from team activities, a drop in productivity, reduced flexibility, and unwillingness to take on tasks outside of normal duties. Of course, some of these pointers can be steps employees legitimately take to reduce workplace stress and burn out and are not necessarily indicative of a problem; understanding the motivating factors is key, whether it is an individual concern or a larger group of employees showing a change in behaviour. Where a larger group is quietly quitting, this is a clear indicator of an issue within the business with employee engagement and motivation.

Is it a performance or conduct issue?

Quiet quitting is not necessarily a performance or misconduct issue and can only be legitimately approached as one where performance falls below the expected standard, or an employee’s attitude or conduct becomes unreasonable and requires addressing.

If duties are being carried out as required and the employee remains courteous and follows instructions, an employer expecting additional tasks to be performed or hours to be worked without specific compensation and agreement risks being responsible for any health and wellbeing consequences and the consequent legal risk of a constructive dismissal or personal injury claim.

Employers who address a downturn in productivity or a change of attitude without exploring the causes may also find themselves at risk of a discrimination claim, for example, where a health issue is causing the change in productivity, or menopause or new childcare (or other caring ) commitments are impacting on the employee’s time or energy.

What steps can employers take to address quiet quitting?

Understanding why an employee or a group of employees have opted to quietly quit is the first step. Where it is linked to a particular challenge in the employee’s work or private life (for example, new childcare or caring responsibilities or managing an illness), this can be addressed through practical measures to support the employee through the challenge: for example with flexibility in patterns or work, coaching, training, mentoring, assigning duties to others or a combination of these steps on a temporary or permanent basis, as appropriate.

Where the disengagement is caused by a poor employee experience, for example, overwork, poor management, poor compensation or feeling undervalued, these root causes will have to be explored and, where possible, addressed.

If workloads are unmanageable, can some duties be delegated or transferred? Managers should be trained to recognize the signs of burn-out and to keep in touch with their employees to make sure they can identify when support is needed. Employers should ensure that there is clear support signposted for employees experiencing stress and poor mental well-being as a result of their workload or work environment. Happy, well-valued employees will have greater productivity and less time on sick leave than those whose needs are overlooked or who are expected to perform in a work environment where doing additional work is considered the norm and any attempt to maintain work-life balance is perceived as a lack of commitment.

Real living wage increase announced

It has been announced that the “Real Living Wage” (RLW) rates, set by the Living Wage Foundation, are rising to £11.95 in London and £10.90 across the rest of the UK with immediate effect. The wage increase reflects what the LWF considers people need to earn to cover everyday needs. The LWF states that over 11,000 employers voluntarily pay the RLW. The RLW is not the same as the National Living Wage which is set by the government following recommendations from the Low Pay Commission. The National Living Wage is currently £9.50 an hour for those over 23.

While this announcement is, on the face of it, good news for many workers, with the cost-of-living crisis still dominating headlines, concerns have been raised that workers who benefit from the RLW will in any event continue to struggle to meet everyday living costs in the current climate.

The Covid-19 pandemic shone a spotlight on health and wellbeing and the importance of this for employees individually and for businesses in minimizing sickness absence and recruitment costs. Some businesses are looking at a range of approaches to support employees through the current crisis, for example through a one-off payment to reflect increased living costs. Care must be taken to ensure that the terms on which such payments are being made are clearly set out and understood. Other ways that businesses may support their workforce include considering flexible working requests, which may, for example, help ease childcare costs; supporting employees with the skills and expertise to progress through the business in higher paid roles; and considering other financial benefits such as hardship loans or company sick pay.

Inevitably some employers are also looking at how they can reduce their own costs, including employment costs. Changes to terms and conditions of employment and/or the need to make potential redundancies raise a number of legal and practical challenges for businesses.

Even where changes to non-contractual benefits are proposed, employers should not underestimate the impact on employee relations and the risk of arguments that such benefits are in fact contractual through custom and practice. The use of “fire and re-hire” as a mechanism for changing terms and conditions has been headline news and employers should ensure that as well as complying with their legal obligations, consideration is given to new Acas guidance on this practice. We are currently waiting for a statutory Code of Practice to be published.

Tomorrow (23 September 2022), the new Chancellor of the Exchequer, Kwasi Kwarteng, is set to announce a “mini-budget”. It has already been announced that measures include scrapping the Health and Social Care levy, and it is expected that there will be an introduction of initiatives to get more people off benefits and into work. It has also been widely reported that the government may end the cap on banker’s bonuses in a move to boost the economy.

Right to work checks change on 1 October

All employers in the UK have a legal obligation to ensure they are not employing individuals who do not have the right to work (RTW) in the UK, whatever their nationality. For British and Irish nationals, employers have been able to undertake either manual checks or use an adjusted process, brought in during the Covid-19 pandemic, which allows documents to be checked over a video call.

From 1 October 2022, employers will no longer be able to conduct a right to work check via the adjusted method. Instead, employers can either continue to conduct manual checks by meeting physically with the employee and checking the appropriate documentation, or use the services of an Identification Service Provider (IDSP) who will use identification document verification technology (IDVT) to check the passport of the British or Irish national on the employer’s behalf (although an employer must still ensure that they obtain and retain a copy of the document that the IDSP checked, together with a copy of the IDVT report showing that the worker has the right to work in the UK ).

Businesses employing foreign nationals with biometric residence cards, biometric resident permits or frontier work permits can continue to conduct online right to work checks via the government’s Employer Checking Service. (Read more about this in our earlier Insight.)

Compliance with right to work checks is critical. A failure to comply may lead to civil penalties of up to £20,000 per worker and potentially a custodial sentence where an illegal worker is employed without the appropriate right to work checks being conducted.

Our specialist immigration team will be happy to provide further guidance on the new rules for RTW checks.

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