Staying on top of employment law risks

In 2019, I felt compelled to launch a podcast that went beyond case updates and tackled some of the increasingly complex and challenging issues that HR and legal teams are facing. At the time, the media was aflush with issues such as the Harvey Weinstein allegations, the #MeToo movement and LGBTQ+ rights and this was spilling over into questions about the culture in UK businesses.

Three years and sixteen episodes later, there’s still no lack of topics to cover and the positive feedback and Apple rankings show just how high this is on employers’ agendas. And rightly so; we invest in this because it’s such a high profile and potentially damaging area for things to go wrong for our clients. It’s a board-level issue, and as much about the court of public opinion as it is about the court of law.

The volume of these complex, multi-faceted issues is growing and they’re often being pushed up by the ESG agenda – a fertile ground for issues that question how employers treat their people and if and how they address the myriad issues that affect their staff, from sexual harassment, burnout and flexible working to employee monitoring and race discrimination.

With ESG being the acronym that will define our era, it’s never been more important for HR and legal teams to keep track of how the law and expectations are changing, new risks, and where they might be falling behind, meeting or exceeding best practice.

Listeners’ top concerns

Burnout and workplace stress has been our most popular episode by far, attracting 920 listens and counting. Prompted by the World Health Organisation categorising burnout as a workplace disease in May 2019, there was a rush of interest in what causes this occupational phenomenon and what employers should be doing to prevent and manage it.

In my experience, claims relating to burnout and stress can get extremely complicated and it’s becoming harder for employers to prove that they discharged their duty to the employee. In the episode, we discussed questions like: is working from home a sufficient reasonable adjustment for an agoraphobic employee? How can modern working practices like hot desking affect people with social anxiety disorders? And are you obliged to create a new post for somebody who is disabled?

We’re entering an interesting phase in post-pandemic work at the moment with people realising that flexible working can be a double-edged sword when it comes to work-life balance, especially for women, and I’m sure we’ll be revisiting this topic again in this context.

Unconscious bias has also over-performed, considering it was our eighth episode and is already rounding off the top four with 749 listens. This is interesting because in the media you hear a lot of stories about unconscious bias perpetuating prejudice against certain groups of people, as well as heavy dismissal of unconscious bias training as the solution, and yet not a lot of success stories.

It’s certainly a challenging issue for employers to address, and we looked at how some organisations are going about it, such as linking their ED&I strategy with people’s individual objectives, so that they’re much more embedded in day-to-day work and the way people carry out their roles, rather than just being able to demonstrate that an annual training session has been held.

I’d also like to acknowledge our more recent working parents episode, with 536 listens and still rising up the charts. As I mentioned, the nature of the issues in relation to this are evolving all the time and there’s a huge cross-over with gender equality, so I expect this to remain top of the agenda. The law and employers’ policies and support mechanisms will need to keep track with the issues and ensure that we aren’t taking one step forward with flexible working and ten steps back in other areas.

New episodes

More recently, we acknowledged a possible inflexion point for the 1.2bn people in the world who identify as disabled, with an episode on the impending rise of the disability agenda. This is the largest marginalised group in the world and in 2021 there were various indicators from the government and society that we’re going to see more rights in this area, more awareness, and more pressure on employers to address equality, diversity and inclusion issues with regards to people with disabilities.

We discussed everything from employer attitudes when deciding what is and is not a disability to the challenges with using medical reports – quite a practical discussion. Disability discrimination kicks in for all sorts of reasons and in our forthcoming episode on gender equality we talk about how things like the menopause – which doesn’t have a specific legal protection – can be classed as a disability, so I think this is a significant risk area for businesses and something to focus on.

We’re often joined by people from across the firm and one of our regulatory partners joined me recently for a conversation about five new challenges with returns to work since the pandemic. For example, employers’ duties and the legal risks associated with people returning from long periods out of the business to a hybrid working world where they have less face to face time with colleagues.

Likewise, one of the co-chairs of our BAME network joined us for a discussion about race discrimination and shared some invaluable insights into the role and benefits of affinity networks including the role of data in improving equality, diversity and inclusion in business. Regulators and investors are flexing their muscles here, and many companies still aren’t treating this topic or cases with the seriousness it deserves, so it’s another important listen.

We encourage people to send us their feedback on the podcast and are always looking for suggestions of new topics, and any general or practical questions we can address.