Employment Law Discussion Around Fire/Re-hire Policies and Staff Shortages

Posted in : 'Any Questions' Webinar Recordings on 3 June 2021
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Fire/Re-hire Policies; Staff Shortages

In this webinar recording, Scott and Seamus are joined by Mairead Scott, MD of Honeycomb Jobs, as they discuss issues around the Fire/Re-hire policy that many organisations are being criticized for implementing, and steps that employers can take to help address staff shortages in many industries as result of the Covid-19 pandemic.

The Recording


Scott: Good morning, everybody. My name is Scott Alexander. I'm from LegalIsland. We've got cameras on this week because we have a special guest. We do, of course, have Seamus McGranaghan here. We've got Mairead Scott. More of her in a second. Say hello to us while we've got Seamus. You know him, so I'm not going to bother introducing Seamus. That's where he is, but that's what he looks like. And, Mairead, you look like that and you are the managing director of Honeycomb, so tell us what you do at Honeycomb and why you're on this podcast today.

Mairead: Why I'm on the podcast, I am indeed and so apologies I set a precedent for cameras on, but no, thank you for inviting me along this morning. I have joined today because I am managing director from Honeycomb. We're a specialist recruitment business that's specifically focused on business support professionals working across all verticals. I have worked in recruitment for nearly 25 years. So hopefully, will be in a position to give some input into what we're seeing from the candidate perspective, the employee perspective today. I'm delighted to be joining in this morning. Thank you.

Scott: Thank you very much, Mairead. Yes, we're going to be looking at a couple of aspects hire and re-fire but before I tell you that, the big news is the Annual Review of Employment Law has been set. It's on the 10th and 11th of November, I haven't quite written the program, but I'm doing it. I'm doing it. Okay. We also have an International HR Day, so as well as that, if you book a place in the Annual Review, which you can do, you can get in touch with Allison or you can go on to the events page. We have an International HR Day set for the 27th of January 2022. I'm confirming our speaker this week from Switzerland. Exciting speaker, very good, I'm going to have someone Australia, we've got people from all over the place. It's going to be marvellous this year, the Annual Review. It's still online. So it's two days, and it's going to be online.

Okay, so let's get around to today's subject. And as ever, we like to do a couple of polls before we start.

Poll Questions


Scott: That it is indeed 2%, two bad people on this broadcast are thereby certain firing people and then giving them new contracts to bring them in. Most people do not look at that. Maybe coming to you, Seamus, what do you think? Can that be reflective of the kind of things you're seeing in your business?

Seamus: Yeah, absolutely. I think it's a last-ditch approach for most employers. Look, the bottom line is that the fire/re-hire process is complex, it is high risk, and a lot of employers will avoid it. But only you do see that it is done, when it is done it's done on a larger mass scheme than it is for certain individuals and that's probably where we hear more about it in the press. But a lot of employers do . . . I think there's an element as well that it concerns the employer, particularly in relation how it will impact their business, the view, the wider view of their business, the morale of their staff, and it almost feels like a sneaky shortcut way to get what they want. And as I say, it is high risk so a lot of employers do tend to avoid it.

Scott: Okay. And, Mairead, what about you? I mean if you've got candidates that come to you and are looking for work, would they be impressed going to an employer who has fire and re-hire policy in place?

Mairead: No, and actually the results of the polls are really interesting because I haven't had any instances at all with employers who've adopted that policy. I think as Seamus said, it's absolutely a last-ditch approach because it creates a level of, I suppose, disconnect between the employee and the employer, and creates very poor morale, and typically employers that we've worked with would tend to look at a more consultative approach if they have to address issues. They'll look at terms and conditions and that's been the trend, you know, with anybody I've talked to, so I haven't had any of the employees coming to me where they've been in a situation. But there are a number of sort of high-profile cases across the UK and as Seamus said is on a much larger scale whether they're adopting that approach across the entire business.

Scott: A lot of people across the spectrum really. I know there's been a lot on the press about the hospitality sector really struggling, but right across the spectrum there seems to be issues and of course, we are reorganised. Even at LegalIsland, we're looking at bringing in someone on events, but not in physical events, online events that will do. So stop it there. May I see the figures? 60-40. So, Seamus, again, from a legal point of view, are your clients having issues about bringing in staff and the legality of doing that? You find a lot, even your organisation, are you experiencing shortages in specialist skills or anything?

Seamus: And the answer is yes. And I'm not surprised at all by the outcome of the poll. I think that a lot comes down to it. I don't know what Mairead's view may be, but a lot comes down to how employers treated staff over the pandemic. And what steps they've done, or what steps they've taken in order to protect and be good to their staff and understanding to their staff.

Other than that, I mean, there was large scale coverage on local news and media this week in relation to the difficulties that the hospitality industry were having. Obviously, they were closed for such a long period of time. Instability in relation to employment and issues for employees, you know, not knowing when they were going to get back to work and whether they were going to have to stay in the same roles and a lot of them have left and obtained alternative employment where they'll be able to get stability, so there certainly is an issue with staff shortages.

There has also been . . . the working from home aspect has changed massively. People are able now to do their work in Northern Ireland, but live somewhere else or vice versa. And I'm aware that a lot of people are returning home to Northern Ireland here, and I say, home on the basis that this is where they're originally from because they can work remotely, live here, but still maintain their jobs and certainly within the legal field here, there's more and more of that that I come across whereby we have solicitors that are working in Northern Ireland, but they're working for English-based firms, and they work with an English team, but they simply work remotely so not surprised to see that there is these issues of shortages arising.

Scott: Okay. I'll turn to Mairead. What I was going to suggest though, when I'm speaking, I'm getting a bit of feedback here, so maybe if we mute each other when we're not chatting. I will do the same on my end. But, Mairead, from your point of view, are you finding a lot of people are either looking for work or employers that are coming to you, or employees that are looking? And there seems to be this huge amount of drift.

Mairead: Yeah. I mean, the results of the poll don't surprise me at all. In fact, I probably thought it would have been a little bit higher in terms of the numbers of staff shortages and there's a shield there. There's probably a number of factors that are feeding into that. The hospitality and retail sector have been hugely impacted by the lockdowns and closures, and as Seamus said, there's people who have either decided to completely sort of reskill and change the sector that they're working in, more stability going forward. And I think it's going to be a real challenge for those sectors in particular to try and to recoup some of that that loss and I think they're going to have to be really innovative in terms of how they attract candidates into the sector through the training and sort of the benefits that they're offering and so on, so that's one area.

I think a lot of organisations had to make sort of fairly significant redundancies through last year due to training conditions in their sectors, and again, they have lost that talent pool out of their organisations and they're now trying to sort of re-hire and re-sort of consider talent coming in and that is challenging. We're finding that, Seamus, sort of across some areas of legal and some areas and sort of real estate and so on where they've had to make sweeping changes and now trying to get that talent on board. And then you have those sectors that would always have had the world talent, it was always sort of the high demand in those areas. And that thing completely exacerbated so you know all of our clients across tech and financial services and so on, they will continue, and they're in growth mode now and they're continuing to struggle to get talent in that they're looking for.

So it's quite complex. I think, we had talked to some of the sort of job boards over the last number of weeks to get a bit of idea of what's happening across the wider sort of landscape and they've reported the highest number of jobs advertised by direct employers. I think their number of jobs advertised has increased by 50%, and the number of application numbers haven't sort of risen with that, so you can see that across all sectors in Northern Ireland, there's huge demand, there's huge increase in requirements for staff, and I think that that's touches every sector, so we're definitely seeing it. We're definitely seeing that demand there and the skill shortages there, and sort of the demand for talent across all the areas we work in. I think you're still on mute.

Scott: You know, I never mute myself because it's usually just Seamus and me. I'm going to have to find a scapegoat here to take responsibility for that one. "Scott you're on mute," is not something that many people hear because I'm full of myself. I'm never on mute. But anyway, I say never. I clearly was there, so apologies, folks.

So we have a couple of things there to chat about, which is mainly to do with the fire/re-hire. We've got some questions in. If you're listening out there and you want to send in questions, you'll see there's a little question box on your right-hand side of your screen. You drop them in there. I'll raise them anonymously with the panel here today. And we'll tease these things out, so you can see fire or re-hire and we're going to look at staff shortages as well. We've got a couple of questions in there.

Just before we do, Seamus, there's a couple of new employment law issues that kicked in today.

Mandatory Vaccines

They are both covered for those who are subscribers in the weekly review of development, and they are the Employment and Human Rights Commission in GB has accepted that compulsory vaccinations for staff in the care sector and care homes is reasonable from an equality and human rights perspective. And the second thing is that we've actually got a piece of employment legislation laid before the Parliament, or the Assembly rather, in Stormont, and that is on parental bereavement leave and pay. And so we've had some developments there, Seamus, before we move on to today's subjects.

Seamus: Yeah, so maybe just one because they're both issues that we have discussed previously on our podcast, so it's just good to bring the listeners up to date as well. But, yeah, look, interesting there that the Equality and Human Rights Commission have come back now to say that the mandatory vaccinations are now recommended. Now they're specifically recommended for care home workers. And what they've said is that it's reasonable to require care home workers who work directly with older and disabled people to be vaccinated.

So we had talked previously about those sort of high-risk groups. And, you know, employers across the board I think in general are keen to have staff vaccinated and from risk assessments to, you know, getting businesses back open again, and all of those factors that employers will look at. And there has been this bit of hesitation there. There has been some findings from government in relation to the compulsory aspect of vaccinations. It's a thorny topic as we know, because some people are against vaccination. They don't for religious beliefs, for philosophical beliefs, whatever it is they are not on board with it.

You know it is a step in relation to someone maybe taking a view that their human rights are being impinged, but it is interesting to see here that you have that the watchdog, the EHRC recommending that we have compulsory vaccination, so I think that it is, it's important. One thing, I was reading just a quote there and was going to mention that they say that, "In our view, it is therefore reasonable to require a care home staff to be vaccinated in order to work directly with older and disabled people, and subject to some important safeguards to ensure the requirement remains proportionate and to minimise the risk of unlawful discrimination, or breaches of care home workers' human rights."

So they talk about, you know, that there will be exemptions to that, people obviously that maybe have allergies, or where there are religious beliefs that they mightn't be required, but it's a step forward and you wonder is it the opening of the door for other industries in relation to making it compulsory.

But I think also that it does put a very clear line down. We know what those other businessmen and women that have come forward to say that they would be keen for it. But when you've got an organisation now like this and an important organisation coming forward to say, this is what they would recommend, it might leave a bit of a difficulty for others then to push that door open in relation to compulsory vaccinations. And so that's exciting. It's one to watch. Absolutely.

Scott: Yeah, and of course, I suppose it's important to stress that just because the GB employment or sorry, Equality and Human Rights Commission say something doesn't mean it say applies here, nor does it make it law in any way whatsoever but as maybe an indication of the way they're thinking. I suppose from your point of view that I remember at one stage Legal Island were going to put in an ad saying no smokers need apply and, you know, the training and employment agency as it was at the time said, "No, that's discriminatory," We go, "How is it discriminatory?" But you know what would the impact be if you had an organisation that said, "No one without a vaccine need apply for this job"? What impact would that have on people?

Mairead: I would probably urge caution on lots of different fronts for organisations that are mandating vaccinations factor for employment. I think from a moral and ethical point of view is it right to do that for the groups that they are in? But as Seamus said there's lots of people who potentially can't get vaccinated because of their own sort of health issues, and are we then creating a very divisive workforce, a very divided workforce? Are we creating barriers to employment for people unnecessarily?

I absolutely understand that in some situations where you're dealing with high risk and highly vulnerable people that might be a condition for the employment, but I think from an employer's point of view, I would urge caution in terms of asking for employees to be vaccinated as a term of their employment because you could find that you are cutting off a significant sort of pool of talent for the organisation from the employer brand sort of perspective, what will that look like? Is that creating an inclusive environment for all employees? So I think that might be a barrier. Longer term, I know when we're in the middle of this sort of the issue that we're dealing with right now it is a fairly contentious issue, but I think we need to take a long-term view of like what that would mean both for the employer, and for the wider sort of society in terms of how we're treating people when we're asking them to be vaccinated as a condition of employment, if it's not entirely necessary.

Scott: Okay, thank you. Even though I have my second one, and everyone knows that two jags are better than one. We will move on to our last section. They say the bereavement leave, we'll come back to it later on as a second reading on Tuesday.

Fire and Re-hire

Let's move on to first question and maybe I'll put this to Seamus.

There has been a lot of discussion in the media about fire and re-hire policies. Could you explain what this is and if it is unlawful and when is it unlawful if it is?

Could I ask maybe, Mairead, if you mute if your not muted already.


Seamus: Okay. Thanks, Scott. Yeah, so we did do a little bit of discussion on the last webinar on fire and re-hire. I wanted to sort of explore that further because there has been further media coverage in the past lot of weeks in relation to fire/re-hire. So the formal term for fire/re-hire is dismissal and reengagement. And it's the practice really where you're terminating an employee's contract of employment, and then at the same time offering to reemploy them on different terms.

This has come about over the pandemic on a number of sort of stages, and really what you have is that employers have sought varied terms and conditions of employment contracts as a result of the pandemic. I think most employees have understood the reasons and they can understand the business reasons for variations, and most have gone with it. But again, you know, also another one has been the developments of technology and the working from home aspect. They have been able to cut out elements of the role and has resulted in variations being required from a business purpose . . . sorry, from a business need.

So this can be for approach for an employer to adopt, but it is subject to the employer having consulted on all of the changes that they're proposing, or anything that they intend to bring in into force, and they also have to follow a fair procedure in respect to dismissal now. I sort of wanted to get into a little bit of detail about it.

And just to briefly mention that it would mean that if employees who refused the offer of reengagement, could they then bring a claim for unfair dismissal because if the employee or employer is essentially saying, "Well, I'm dismissing you under your existing contract, but I'm offering to immediately to re-hire you under new terms and conditions." If the employee refuses those, the employee could potentially claim unfair dismissal at the tribunal. But the employer would at the tribunal, "Well, we provided them with new terms and conditions immediately, and there was a failure there to take that up and litigate and that's the employees fault in relation to the dismissal."

So those sorts of arguments would apply but in the event that the employee does claim for unfair dismissal and the employers going to have to demonstrate and it's clear from the legislations, clear from the Employment Rights in the Northern Ireland order that the onus is on the employer to demonstrate the reasons for the changes as to why they require them, and that they were necessary for the business so always remember that it's not just simply an employer. An employer can't just go in and say, "I decided today to change the terms and conditions," you know, "Sign it or I'm going to sack you, and here's 24 hours to do it." That's going to be unfair. So the employer is also going to have to demonstrate that they followed a fair procedure, and that they consulted appropriately with the affected employees. And it's not automatically unfair, but the burden of proof will always rest with the employer to demonstrate that their procedure was fair.

Scott: Explain to me coming there, Seamus, because normally when you're looking at fire and re-hire, you're talking about multiple instances. There'll be a big workforce. And it meets the definition of require when it comes to collective consultation as well, doesn't it? Because it's a variation to terms which has nothing to do with the contract itself or the individual performance of the contract.

Seamus: Yes, and some people do think that collective consultation, and it relates solely to redundancies but once you're above more than, I believe it's the 20 people, you have to then enter into the collective consultation process and there are time limits in relation to how that's applied and there's certain steps, so the consultation is absolutely key to this process and you're going to have to satisfy at tribunal that you've taken those steps before you get the point where you could fairly dismiss an employee, but sorry, Scott, I interrupted you there.

Scott: No, I was going to say you've got that aspect. You've also got the point that in order to terminate an employment contract for this reason, ordinarily, it would be with notice as well. So if you've got long standing staff, that's 12 weeks' notice usually under statute, or up to 12 weeks under statute. You've also got on top of that you've got the consultation period depending how many people you've got. On an individual, if you're looking at bringing one or two people back, it's going to be very difficult to justify that it was a substantial reason for terminating that contract if it's a one-off. You know, you have to save this £2000 a year, otherwise, your business will go bust. It's not likely to happen. It's very difficult to justify from a legal standpoint, isn't it?

Seamus: Yeah, absolutely. And sort of just to go through the steps, I thought it might be helpful just if I set out the, suppose, the process as to how it might work. So, you know, we know that the fire and hire has been an issue that has arisen through the pandemic, changes the terms and conditions to avoid job losses, and redundancy. Some employers, as Mairead had said there at the start, employers did generally look at furlough and other options to avoid redundancies and part of that process was looking to perhaps vary contracts of employment. And the idea was keeping the business going during the pandemic.

And I think the law accepts that the businesses there. That's why we're employed and the business is of paramount importance, but you have to balance that with the rights of the employees. So it's the reaction to amend business needs, and things like working hours, duties, and responsibilities may have been things that employers were looking after in the pandemic.

The other thing has been that during the pandemic, it has been a quick fire, in terms of what employers have wanted to do. I don't think employers have felt that they have the time to enter into lengthy consultation periods. They feel that it's something that needs to have been reacted to quickly in order to sustain and protect the business.

The Labour Relations Agency do have a guidance note. Scott, I think I mentioned it on the last webinar. It's dated May 2020. It's bang up to date, and it was probably brought in around that time because they could foresee that the issues were going to be arising. It does say that it's specifically for agreeing and changing contracts of employment and there is a part in that in relation to fire and re-hire or looking at reengagement.

First thing first is always look at your contract of employment. What does it say? Does it permit you to vary the terms and conditions and things like mobility clauses, where you could be saying, well, you know we're closing a branch because of the pandemic. We couldn't open. We couldn't sustain it, and we now require you to work at another branch instead. And rather than having to do down that fire/re-hire, simply look at the contract and see does it permit you to make those changes. And, you know, does the contract allow the amendment? Always consider that the key elements have to be the business needs. You have to be coming at it from a business perspective. And back to your point, it can't be, "Oh, we're looking to save £2000 a year." That's not going to cut. It needs to be a substantial business reason and need. And again, you have to have consultation with the employees and hopefully the consultation will result in an agreement to vary terms and conditions of employment. Sometimes that doesn't happen. We know of the cases where there are huge issues. Argos as well have come forward and said like, "This is the threat. Play our game, we've done our best, you need to meet us somewhere, and if you don't, we'll look at fire and re-hire."

And so the key elements for that are really looking to see if there's no variation, and ability . . . or in the contract of employment, and there's no agreement, then you might be looking at dismissal reengagement procedure. And that brings about two things, dismissing the employee under their existing contract or employment, and then immediately offering them new terms and conditions under a new contract of employment.

In general, when we look at relations rather some other substantial reason is the legal requirement. Article 131B says that, again, it's for the employer to show that dismissal is fair and fair for some other substantial reason, or a kind such as to justify the dismissal of the employee holding the position which the employee has held, and then again, it's key to the employer to show that the dismissal was reasonable in all of the circumstances. So it has to be a reasonable dismissal also in Article 134B says that you determine that in accordance with equity and the substantial merits of the case.

And so there's important aspects that you have to do, if you're looking at dismissal. And it has to be within the bounds of reasonable responses. It has to be reasonable in the sense that another employer would make that decision. And also the tribunal will seek out and they'll seek the evidence in relation to all of those steps in relation to any claims of unfair dismissal.

Scott: Can I maybe come in there a bit? Just to make it clear, because we're going to move on to the staff shortage thing as well. So if it's under 20, you're going to be looking at following the 123 procedures in Northern Ireland. It's different in GB, obviously. And it's one year service, the person would have the right to claim unfair dismissal and they could work under protest and try and claim unfair dismissal anyway so you're not guaranteed about that one. If it's 20 or more, then you're looking at collective consultation on top of that, or the employer would face a protective award claim, which could be up to 90 days pay and such like per employee and all that. So it's a dangerous route to go down. It's not something that's recommended for the foolhardy. You wouldn't want to do that.

Maybe just to bring in Mairead there, we've covered some of the stuff about the about the impression. Suppose the employer has been through all that, they've been through an organisation, Seamus' point about it's going to be major. Okay. It's none of that piddly little bits here. It's almost like a last resort. You know, the back of it you looked and said, what else can we do to save costs? It's an existential threat to the business. We've got to cut wages or terms, otherwise we go under. What does that say from a recruitment point of view, if you're trying to get people into that organisation or people are looking at the organisation? I’ve been through it today, you know?

Mairead: Yeah, I mean, definitely, it's not as an absolute last-ditch approach, I mean, as Seamus said. There are legitimate times when organisations do have to take that approach where they're looking at terms and condition of the business to save the business. And I think in that instance probably, as Seamus said, if the consultation and the transparency with the employees about what is happening or why it's happening.

And I think businesses can recover. Businesses do make sort of difficult decisions and they can recover if they are transparent about the reasons behind that. I think if you look at some of the high-profile cases that are reported on the hire and re-fire, so fire and re-hire policy, should've say, it's important that sort of the company that adopted this policy get the reporting profits of X and they're getting government grants of Y. So from an employee perspective, it feels like it's a profit saving exercise, as opposed to a business protection exercise. So I think, to know from an employer brand perspective, businesses will need to be really clear if they are adopting a policy like that, what the rationale is behind it, and what the outcome will be if they didn't do that, and be really transparent with the individuals that are impacted. And then employees going forward who are looking to reapply and re-enter that organisation, so I think that communication piece and that transparency piece is really key around how the organisation is going to recover from an incident like that.

Scott: I suppose it fits in with the point that Seamus is raising which is really that you can get around it by consulting. If people agreed to it, there's no need to you know . . . you either look at whether you've got the right to do it. It happened at Legal Island in, oh 2008-09 recession if you remember it. We were looking at major losses and unlike most organisations, you get a profit and loss, everybody does at Legal Island. You get all the sales through. You know how you're doing and it was quite clear that we're doing badly and we're brought together, Barry, who owns Legal Island, goes, "You know what, we are facing big losses at the end of the year and it's either redundancies, folks, or we're going to have to take a pay cut."

Everyone, because nobody wanted to see anyone lose their job, everyone took a pay cut over the summer and the deal was if you went into four-day week, you got 80% of your wage over the summer. But if you stayed there, you still got 80% of your wage, but if we made profits at the end of the year, you've got your 20% back. All it was by hook or by crook we managed to make some profit come the end of the year. And Barry came down, he goes, "Look, if you did your . . . You're all getting your 20% back. And if you did a five-day week, you were getting double your money back."

So, you know, and again, all that goes for the culture of the organisation that, you know, we're in this together. If we do well, you'll do well. If we do badly, hey, we're all going to tighten our belts and we all did. It gives the big impression, Mairead, doesn't it?

Mairead: Absolutely. I was going to say, you know, very thankfully none of the organisations that we work with have had to apply the fire and re-hire policy, but what we have seen is lots of organisations being creative with their employees around how they can reduce costs in really difficult trading period, and retain jobs and they've done absolutely that, Scott, where they have looked at offering things like sabbaticals for individuals who perhaps would have wanted to take time out for whatever reason, or looked at a reduced working week in terms of numbers of hours or numbers of days worked, which suited the individual and the business at that time.

So they've been, sort of . . . and again this is all done with transparency and quite a lot of consultation so actually, at the end of the day, rather than being negative, the employees might have come out of it thinking that, you know, the business worked with me at a difficult time to retain and protect our jobs. And I think that has worked because it has enabled the business to sustain through a difficult period, it's kept that talent in the business, but offered a solution that was going to be right for both parties.

And the employers who've been creative in that way have come out, probably looking like heroes because they haven't had to sort of make mass redundancies, or lose jobs, or do whatever and they've really worked with their teams to make sure that they have come to a solution that's worked for both parties. So there's definitely been some businesses locally who've come out really, really strong through their processes of communication and how they have treated the individuals that have worked for them through this period and I think it's completely down to working with individuals, communicating with them and explaining the rationale and the impact of what you're doing.

Scott: Eager, eager. No, he's frozen now. Have you frozen? No, go ahead, Seamus.

Seamus: Sorry, Scott. I missed what you just had mentioned there.

Staff Shortages

Scott: Well, I thought you were looking to come in. No. Because I was going to say I want to move on to the second subject, which is staff shortages. If you did get your weekly review email today and have a look at it, you'll see that our good friends at Think People are looking for some HR professionals and other staff. I don't get paid to say this, by the way. We just like them. And we'll come through the questions that are starting to come in now.

You may have noticed as well that I mentioned that Katie is doing some of the stuff, that's because we've been joined ourselves. At Legal Island, we've got various staff changes. Katie Shaw is a new administrator. It's Rolanda Markey's last day. She finishes today and she goes to Positive Futures next week, so we're wishing her all the best. So, hello, Rolanda and indeed goodbye. But we have Christine Quinn, who's an employment lawyer, join us in Rolanda's place today and indeed she'll be starting fully on Monday.

So we're all changing, so let's get to the next bit, which is all to do with the staff shortages, and then Andrew, I promise I'll come back and get to your question. So the question has come in here, and I'll maybe look at it, maybe go to Mairead first. No, Mairead been chatting. I'll put this to Seamus. There's a couple of questions that have come in here that I supposed they cut across.

Can we recruit overseas to address staff shortages? We found that 60% of the audience today have staff shortages. So can we go overseas? Are there cost implications, and tied on to that, can we have targeted recruitment, such as females that are out of the workforce?

We did an event earlier in the year, Seamus, with Allstate where they looked at trying to target, particularly women who had left and had been out of programming, computer programmers, for quite some time and said, "Well, we know they've got the raw skills. If we bring them in, we can retrain them and get them back quickly." So what are the legal issues really by either recruiting or the cost, recruiting overseas or targeting specific groups?

Seamus: It's interesting when you mentioned the overseas aspect because that's something that probably in the last lot of months, maybe from around October, November time. It wasn't something that I was particularly up to speed on. I have to pick my hands up, just it wasn't something in terms of advising clients that had really risen before was my client base, but it has now from in around November. And I know that we've had Brexit, and we've had the settlement issues that have arisen and we've all got used to those.

But really, I mean, look, there are those various steps that you have to go through in relation to bring in somebody from outside the UK. You're obviously covered for anybody within Ireland but anybody outside the UK coming to work for you, then you need to go through the proper processes in relation to sponsorship and in relation to them making applications for permits to come into work in the UK. That process and, you know, it's a complex process, it's not straightforward, and it takes time. And so where you are making those endeavours, give yourself plenty of time.

And you can expedite the process in relation to sponsorship, you can pay an extra £500. But that doesn't guarantee that you're going to get on the fast list to get it done. It is tricky and specifically where at the minute what I've come across is a number of times, we require employees, talking about multinational clients here that require employees from other European states or from America to come over to do urgent training or working with equipment to provide assistance in relation to that. But the quarantine periods themselves are tricky from anybody coming over from another country into the UK, but then also on top of that, the permits have the necessary steps that you need to take, and particularly if they're bringing family, whether it's partners and children and things like that as well, so it is a complicated process. If you are looking to do that, make sure that you get good legal advice or advice from a proper authority that can hold your hand through it because it isn't straightforward.

On the other aspect of targeted recruitment, I think that is a resource that people can tap into to see if they can seek to recruit, maybe, where they're liked on certain sort of types of people I suppose within their organisation. I'm aware of specifically looking at targeting females. I mean, in fact that for me is really about looking at the resources that you have, doing your impact assessments looking to see what your workforce looks like and where you need to make those improvements in relation to whether it is on gender or other types of diversity that you need to bring into the workforce. But certainly, I wouldn't get overly concerned where there are shortages in relation to that within your workforce that people might say are health concerns. Am I discriminating? Am I positively discriminating? Am I doing something wrong here by looking at that? But no, I mean I think it's to be encouraged. I'm sure Mairead has some helpful thoughts in and around that also.

Scott: Okay, Mairead. I'll give it to you. There you go.

Mairead: Yes, sorry. No, Seamus, I was just sort of making some notes as you were chatting there just regarding the sort of the visa application process. I suppose probably those areas that would traditionally have had a skill shortage and that demand for talent remains so across IT, finance, engineering, and sort of the scientific sectors, and organisations that we work with who would have to sort of skill shortages in those areas will continue to sort of look at bringing people in overseas. But as Seamus mentioned, there is a very specific process and there's a barrier. There's a framework around where the rules will apply for that.

I think some of the other organisations that we work with through last year were saying the biggest risk to their businesses is their people, and then would tend to be in sort of production or sort of hospitality and so on where they have a huge workforce of probably low paid individuals and a lot of whom are coming from EU countries and that poses a significant barrier to those organisations. How do we recruit those individuals who perhaps go back to their home countries? How do we recruit talent coming into the organisations and that is challenging, that is challenging for those organisations, in terms of how they sort of look at those skills.

But yeah, I think, for with regards to looking at trying to attract underrepresented individuals into the business, you know, a lot of tech companies are looking to open that market up and probably rather than positively discriminating is looking at how they can be flexible as an organisation to bring people on board who potentially had barriers because of child care issues, because of location issues and so on, so they are looking at returning to work or individuals who've got caring responsibilities and being more flexible in their approach with regards to hours worked, and with regards to where they can work and so on.

And that has sort of targeted quite a lot of females who've had to leave the workplace because of caring responsibilities but equally, they open it up to anybody. And I think that makes it a really fair process, but they are increasing the awareness. They're actively going out to look at individuals who've had to leave workforce for whatever their caring responsibilities are and trying to be more flexible in their approach to make it work and where they're bringing that talent back in again which is fantastic to see.

Scott: Yeah, I suppose, Christine, it's one of the big issues. At Legal Island actually we're doing online events and webinars is that opens up to disabled people who wouldn't be able to travel or couldn't travel during various hours. There's a lot of good benefits there, but it also means that, albeit there's some legal issues, Seamus. You could employ somebody and Abu Dhabi, or the U.S., or you don't even have to hire them. You could just bring somebody on a contract basis, self-employed, perhaps, and the fact that there'll be somebody and they're some work elsewhere, you know, I don't know, maybe the odd tax implication where you get the earnings from.

But other than that, it does really open it up to, even if you don't deal with an individual to get work done remotely in India, in China, wherever you want, so the technology means that I suppose you could look at, do we really need employees, or on the other hand, do employees have to be flexible enough that they could maybe have many add jobs, they could do different tasks for different people and be self-employed in some roles, and employed in another. I mean it's an open up. You look at the gig economy cases that have been coming up. It's going up in the future.

Seamus, just before we look at that and we tend to, believe or not, close up soon, we've got down here . . . Somebody just said there can be significant tax implications with employees working abroad and indeed there are less so if it's somebody coming from England obviously just coming back to Northern Ireland to be based here. The cost of this tax base is also significant, so I'm not, I'm certainly not putting it down. I'm just saying that there are opportunities there and there've been big issues. We discussed those in the past podcast as well, Seamus, about people who may be from Europe, who during the lockdown ended up just going home to work from Poland or Lithuania or whatever but they're still based, if you like extensively in London.

Working from Home

But the question we have here is assuming . . . if we can get it up here, assuming the work from home guidance changes, are there any thoughts,

Can employees could insist upon working from home, on the basis that it's now custom and practice, or is this just an issue of dealing with flexible working requests?

So, Seamus, is it long enough to be custom and practice? Is the situation so singular that you couldn't really justify a custom and practice at the moment, or how long would me working from home give me the right to work from home? How many weeks does it have to be?

Seamus: Yeah, I think, from my view, I think we're all very clear that our current circumstances have arisen as a result of the pandemic and we can pretty much put our finger as to when that started for most of us. I think though that it is circumstantial. There will be some employees who have maybe been on an ad hoc basis doing a couple of days from home already pre-pandemic, and that may certainly have formed part of their custom and practice if it wasn't written down and agreed. Certainly, the manner that I would advise any employees at the minute would be that if they were looking to formalise variations or amendments to how they work, that they should put those in writing to the employer and make that request. And for employers, I think my view would be I would lie on the side of the fence that I don't tend to . . . as a result of the pandemic that it has created a custom and practice for employees, but I'm conscious as time goes on, and depending on what government advise is that that may change.

But I do think, I mean, we talked in the last podcast about hybrid working and about how that really is looking like it's going to be inevitable for a lot of businesses, and a real . . . I think it's the degree of flexibility from both the employer and the employee on the basis that it may be that you will have discussions with your HR advisor or with your line manager about how working life is going to proceed going forward.

I keep hearing about businesses saying that they're going to require employees to start returning to the office in June, and it's July, it's 20%, it's 25%. We're all just a bit unsure at the minute and we hear about variance and how things are going to proceed, so we are working cautiously, and I would hope that employers maybe have been clear with employees that these are maybe temporary measures that maybe that is being provided in writing to them, or that there is a degree of flexibility. As always, Scott, it always comes down to good communication and presentation with your staff and employees.

Scott: Okay, our final word maybe from Mairead, just on that. Are you finding that employees who are looking for work, are looking for that flexibility, and employers who are looking for employees are having to offer the flexibility or they're going to struggle?

Mairead: Yeah, it's definitely a conversation to know we have every day with employers now, because obviously everyone is following sort of government guidelines and typically working from home, but we are consistently getting asked by candidates to know what is the policy when things return back to normal. Can I have a hybrid approach? Can I work from home? And I think probably the pandemic has fast tracked sort of the digital transformation for lots of organisations and one positive that's come out of it is that it's made us all sort of reimagine what our work should look like and reimagine where we can do our work and how we can do our work.

And that has brought really good, great positive so to know we've got . . . you can have really talented individuals that we're tapping into from across the UK in Europe who potentially only have to be in the office one day a week here and that makes it really practical in terms of opening that skill pool up. But I definitely think employers will need to look at, to know what is their policy once things are turned back to normal, to know do we have to have people working in the office, or if we are looking at our employer brands and the benefits and how we make ourselves a really attractive employer. Can we be more flexible in our approach? I think, with the majority of roles, the answer is yes. I think employers will need to look at that. They'll need to look at what makes people tick now? What do they want in terms of getting that really good work-life balance and what they're looking for from an employer, so I think that's something we'll have to look at going forward.

Scott: Will indeed. Well, thank you very much to Mairead Scott from Honeycomb. You can see the contact details there. And to Seamus McGranaghan as ever, from O'Reilly Stewart Solicitors. That's it for us for today. Just a last reminder, the Annual Review of Employment Law, two days again online, all the recordings available. This podcast, of course, will be available as well through Spotify and other providers, but 10th and 11th of November, plus the extra International HR Day, so thank you, everybody, for listening. Our next webinar, I'm on holiday, but I'll manage it somehow. I'll be on a staycation in Portstewart, I think, Seamus. So I'll be sandy coloured and whatnot, so we'll be in touch as in the Fourth of July, I think it is. It's certainly the beginning of July, maybe the same, whatever it is, the first Friday as ever of the month, I'll see you then. Thanks, Mairead. Thanks, Seamus. See you, everybody.

Seamus: Thank you.

Scott: Thank you, Rolanda, by the way.

Mairead: Thank you, bye.

Seamus: Thanks, Mairead.

Mairead: Bye.

This article is correct at 03/06/2021

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Seamus McGranaghan
O'Reilly Stewart Solicitors

The main content of this article was provided by Seamus McGranaghan. Contact telephone number is 028 9032 1000 or email seamus.mcgranaghan@oreillystewart.com

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