Fair Work First: guidance

Annex A: Fair Work First criteria: What it means in practice

Payment of at least the real Living Wage

What this means

The Scottish Government promotes payment of at least the real Living Wage as the minimum rate for everyone in paid work; this is distinct from the statutory National Living Wage and National Minimum Wage which are set by the UK Government. The real Living Wage is a voluntary hourly pay rate based on what families need for an acceptable living standard in the UK. The rate is calculated by the Resolution Foundation and overseen by the independent Living Wage Commission; it is reviewed annually to reflect the cost of living, and is announced each October/November.

Building on the strength of the real Living Wage movement, the Scottish Living Hours Accreditation Scheme recognises that in addition to payment of at least the real Living Wage, the number and frequency work hours are critical to tackling in-work poverty. Businesses looking for certification must meet three criteria for accreditation; payment of at least the real Living Wage, providing a contract reflecting accurate hours worked and a guaranteed minimum of 16 hours a week (unless the worker requests otherwise) and ensure at least 4 weeks’ notice of shifts and guaranteed payment if shifts are cancelled within this period.

Payment of the real Living Wage should not be used to limit pay rates, and where collectively bargained rates have been agreed, nationally, sectorally or locally, these should be applied provided they are not below the real Living Wage.

For the purposes of applying conditionality, the real Living Wage rate to be applied to public sector grants will be the rate which is in place on 1 April of the financial year in which a grant is awarded.

Outcomes

For workers

Enabling people to earn a decent income will help them to have a decent standard of living and is the best way of tackling poverty. Low wages and precarious hours are a prime cause of in-work poverty, along with the increased use of zero-hours contracts and other precarious practices.

Payment of the real Living Wage can make a material difference to workers and their families, particularly during the cost of living crisis by enabling them to access greater opportunities, with less need for worry about affordability. This is especially so for women who make up the majority of workers earning below the real Living Wage^[3]. It can also contribute to narrowing the pay gaps in the labour market, including gender, disability and ethnicity pay gaps.

For employers

Research from the Living Wage Foundation shows that 93% of Living Wage Businesses have benefited since accrediting. 86% of their respondents said it has improved the reputation of their organisation and 75% said it has increased motivation and retention rates of employees. They also reported a 25% drop in absenteeism. Paying the real Living Wage can help businesses attract new workers and skills: the Living Wage Foundation also reported that 93% of students want to work for employers who pay at least the real Living Wage. Currently, two-thirds of workers earning below the real Living Wage are women – by paying the real Living Wage an organisation may be able to reduce their pay gap significantly.

Good practice examples

• Having an agreed pay structure which means the whole workforce is paid at least the real Living Wage;
• The organisation is recognised as a Living Wage Accredited Employer or an Recognised Service Provider;
• Applying the pay rates collectively bargained between the relevant employer and trade union negotiating body, provided it is not lower than the real Living Wage rate.
• Paying apprentices at least the real Living Wage rate throughout their apprenticeship.
• Paying all workers at least the real Living Wage regardless of age.
• The organisation is part of a local partnership working towards Living Wage Place recognition.
• The employer is actively reviewing the pay structures and developing an incremental plan for paying all staff at least the real Living Wage.

Note: those involved in public procurements should also refer to the Procurement Reform (Scotland) Act 2014: statutory guidance and Best Practice Guidance to understand, how to consider Fair Work First criteria, including payment of at least the real Living Wage, as part of their public procurement exercises, where it is relevant and proportionate to do so.

Appropriate channels for effective workers’ voice

What this means

Effective voice is much more than having a communication channel available within an organisation. It requires a safe environment where dialogue and challenge are central to the organisational culture and are dealt with constructively; and where worker views are sought out, listened to and acted upon, and can make a difference. Effective voice requires workers, their representatives and employers to work in partnership to make sure the right decisions are made to ensure workers are treated fairly and equitably. The co-determination of working practices is key to delivering all of the dimensions of Fair Work effectively.

The CIPD reported that while having a voice at work can make a fundamental difference to people’s working lives, not all forms of voice are being used equally. Individual voice channels include those that enable workers’ voices to be listened to individually, rather than incorporated into a group/collective perspective. This form of voice recognises that sometimes individuals have legitimate concerns or issues they wish to talk about that may or may not be directly related to improving the functioning of the organisation. Individual channels, whilst very important, still heavily dominate in UK workplaces and there is a missed opportunity to use a collective voice to improve working relationships. Collective channels, that use union and/or non-union representatives, provide a collective voice that can strengthen, complement and reinforce individual channels.

Outcomes

For workers

Effective voice channels improve information sharing and problem solving, encourage innovation, support cross-learning and can resolve conflict. Individual voice channels can contribute to building a positive workplace culture, connecting people to the organisation, and generating powerful insight to improve performance.

For employers

Effective voice through trade unions can lead to effective collectively bargained policy in relation to pay, working time, holiday arrangements, training, health and safety and flexible working that delivers positive outcomes for workers and for employers. While recognising that systems of collective bargaining differ widely internationally, there is evidence^[4] that countries with higher rates of trade union membership and collective bargaining coverage experience high employment rates, strong productivity growth and rate well on international indices of competitiveness and innovation.

Good practice examples

Organisations that are strong on voice will typically promote a strong culture of openness and transparency and encourage acceptance of different viewpoints, thus supporting dignity in the workplace and eliminating workplace bullying, abuse and harassment. Issues and disputes will have clear routes for resolution at both individual and collective levels, and will be dealt with fairly in a timely and constructive manner, giving confidence that, whatever the outcome, fair processes have supported fair resolution. A range of voice channels will exist, promoting voice both individually and collectively, and drawing on workers’ experience when considering organisational policy and practice, thus ensuring any barriers faced, particularly by minority groups, are addressed. Some best practice examples are outlined below, however these are not exhaustive.

Collective voice channels

• Providing access to trade unions and making workers aware that they can join a union of their choice.
• Involving trade union/worker representatives in key governance and decision-making structures.
• Recognising trade unions for the purpose of collective bargaining and encouraging membership, where this is the workforce’s preferred route, and providing appropriate facility time for supporting regular engagement between union/s and members.
• Staff network(s) and/or a forum meets regularly, supports open dialogue and is action focussed.
• Constructive dialogue between the employer, workers and where appropriate a relevant trade union/s to address workplace issues or disputes, e.g. absence management, grievance, health & safety.

Individual voice channels

• Regular surveys are carried out to understand worker views, including how well they feel effective voice is facilitated in the organisation, and are involved in agreeing and progressing improvement action.
• Formal and informal arrangements are in place through which meaningful individual dialogue takes place, including one-to-ones between workers and management, and that these are separate to standard performance appraisal processes.
• Appropriate consultation takes place when required and there is a clear route for resolving issues.
• The organisation promotes a strong culture of openness and transparency and encourages acceptance of different viewpoints.

Investment in workforce development

What this means

Effective workforce development involves employers providing opportunities for their staff at all levels of the organisation and should be a shared responsibility and shared commitment between the employer and workers. Everyone should be able to engage in lifelong learning.

Outcomes

For workers

Investment in workforce development can also build a more engaged and fulfilled staff; and equal access to training is important in advancing equality at work and closing pay gaps. When people can continue to learn and develop, and use their skills and talents to add value, they gain a greater sense of control over their work and scope to make a difference. This helps build their confidence and self-belief, improving individual and organisational wellbeing.

For employers

Organisations that invest in the skills of their workforce can generally expect their workers to add more value, provide a better service, achieve higher levels of productivity and be more resilient and responsive to change.

Talent management is crucial, even when labour markets are in flux. Talented job seekers are more likely to apply for roles in organisations that are committed to developing their people for current and future roles. Fair Work, including investment in workforce development, should therefore be built into an employer’s recruitment and retention processes.

Good practice examples

• Learning & development is integrated in the organisation’s strategic planning and workers and management jointly identify development needs and priorities, ensuring both individual and organisational needs are met.
• Regular equality and diversity training is provided for all staff.
• Learning & development opportunities are provided, and regularly reviewed, to help build the organisation’s resilience and responsiveness to change.
• Managers have development discussions with individuals and teams and prioritise this as part of operational activity.
• Workforce Development Plans and Succession Management Plans are in place.
• Formal and informal learning is offered across the workforce, relating to people’s particular role and wider development.
• The organisation is committed to providing apprenticeships.
• Staff are supported to keep their professional qualifications up-to-date.
• The organisation has an appropriate charter mark achievement such as Investment in People or EFQM.
• The organisation invests in and utilises the skills and knowledge of union equality, learning and other workplace representatives and resources.
• Constructive engagement with union learning reps and Scottish Union Learning activities.

No inappropriate use of zero-hours contracts

What this means

Although there is no legal definition of a zero-hours contract, in the context of Fair Work, such a contract is one which does not guarantee any work to the individual and does not set out a minimum number of hours (whether ongoing or for a set period).

An employer is likely to be using a zero-hours contract inappropriately if:

• it offers a worker a regular pattern of work or regular number of hours but offer only a casual/zero-hours contract;
• a worker has had no say in the zero-hours contract and actually wants a contract of employment guaranteeing a minimum number of hours;
• it puts pressure on a worker to accept the terms of a zero-hours contract (where challenged) in order to keep their job;
• there is an expectation that workers will accept all hours offered but no reciprocal expectation that the employer will guarantee hours of work.

It is only right that workers are in jobs that can provide secure, consistent contracts and pay, at least, a real Living Wage. However, in addition to payment of the real Living Wage, the number and frequency work hours is important. That is why The Scottish Living Hours Accreditation Scheme has been launched, which recognises that in addition to payment of the real Living Wage, the number and frequency work hours are critical to tackling in-work poverty.

Those employers using zero-hours contracts should be able to credibly explain their exceptional circumstance which leads to them using such contracts and the steps they are taking to review their business model to eliminate these circumstances.

Outcomes

For workers

All workers should be able to plan for their work and life, to know when and for how long they will be required to work, and how much they can expect to earn from week to week. This is key to reducing in-work poverty, which disproportionately affects women. It can also alleviate uncertainty, anxiety and stress, helping to support workers’ positive mental health and wellbeing.

For employers

As well as being the best option for individuals, the use of secure contracts can benefit the employer. For example, the employer is likely to be regarded as being fair and an employer of choice, which can help with recruitment and retention. Equally, a worker who has a secure contract is likely to be more committed to the organisation and its objectives, which can boost their motivation and productivity.

Good practice examples

• All staff are employed on open-ended or fixed term contracts with confirmed hours and work pattern.
• All staff have a contract which accurately reflects the hours worked, guarantees a fair minimum number of hours per week and does not involve compulsory overtime.
• Staff get reasonable notice of shifts – at least 4 weeks ahead of time, and are paid for cancelled shifts within this period.
• Core and flexible staff resources are reviewed at least annually to determine if any staff on a zero-hours or minimum-hours contract can be moved to a permanent or fixed-term contract with a fixed number of hours and/or a regular pattern.
• Zero-hours contracts are not used to the detriment of workers with protected characteristics.
• Zero-hours contracts are not used to fill actual longer-term vacancies.
• There is a clear, published policy and process to enable someone to request a move from a zero-hour contract with guaranteed and set hours.
• Gained or working to gain Living Hours Accreditation.

Address workplace inequalities, including pay and employment gaps for disabled people, racialised minorities, women and workers aged over 50^[5].

What this means

Addressing workplace inequalities means recognising that some groups of staff such as disabled people, racialised minorities, women and workers aged over 50 and others with protected characteristics such as young people and LGBTQI workers, face barriers to the workplace and in progressing in their career. Fair work employers proactively take steps that will advance equality for groups with protected characteristics which go beyond their legal obligations under the Equality Act 2010.

Tackling labour market inequalities is not only necessary for creating a fairer and more equal society, it can also help boost Scotland's economic performance.

Research from McKinsey^[6] indicates that companies in the top quartile for gender diversity on executive teams were 25% more likely to experience above-average profitability. In the case of ethnic and cultural diversity, they found that the most diverse companies outperformed the least diverse companies by 36% in terms of profitability. Harvard Business Review found that in many industries innovative companies are showing that the inclusion of disabled people can lead to real competitive advantage and long-term profitability.^[7]

While there are specific issues faced by each protected group, accessing and sustaining fair work can be even harder for people who have a combination of the equality characteristics above, for example, disabled women, or racialised minorities over 50 years of age. Workers from lower socio- economic background can also face barriers. Employers should acknowledge in their policies and practice the intersecting barriers that some of their workers may experience and what can be done to help reduce the 'inequalities of outcome' caused by 'socio-economic disadvantage that some of their workers may face

Skills Development Scotland have produced Inclusive Recruitment Guides for Employers to support the creation of a diverse workforce.

Disabled People

Disabled people experience discrimination and significant and enduring inequalities that result in a lack of access to opportunity. As a result, the disability employment gap (DEG), the difference between the employment rate of disabled people and that of non-disabled people, remains the widest and most persistent “employment gap” in the labour market.^[8] The disparity is caused by various systemic barriers such as inequitable recruitment practices, inaccessible workplaces, negative stereotypes and biases (both conscious and unconscious), a lack of access to occupational health, and a lack of knowledge amongst employers of support available (e.g. in making appropriate and timely reasonable adjustments).

We need to ensure our workplaces are designed and operate in ways that break down the barriers that prevent disabled people from entering and progressing in work. The Equality Act 2010 places a legal duty on employers to put in place ‘reasonable adjustments’ to make jobs and workplaces accessible to disabled people. Reasonable adjustments in employment are changes an employer makes to remove or reduce a disadvantage related to someone’s disability. This can include, for example:

• changing recruitment processes for disabled applicants;
• adjusting work arrangements (e.g. offering flexible working or making changes to the job role);
• modifying the workspace;
• providing equipment, services or support (e.g. adapted chair, screen reading software).

Making the changes necessary to ensure that a business can attract, recruit and retain disabled employees has a number of potential benefits, including:

• Access to a wider talent pool of high quality applicants, which can be particularly beneficial in industries facing skill shortages^[9].
• Increases in productivity, reduced staff turnover and absence rates^[10].

The UK Government delivers Access to Work, which provides support and practical advice to disabled employees who require support or adaptations beyond the reasonable adjustments employers are obliged to provide under the Equality Act. More information is available here: Access to Work guide for employers - GOV.UK (www.gov.uk)

Advice and support for employers to further understand their legal obligations to disabled workers (including around reasonable adjustments) is available from multiple sources, including:

• The UK Government Employing disabled people and people with health conditions - GOV.UK (www.gov.uk);
• the Equality and Human Rights Commission Avoiding unlawful discrimination against disabled people | EHRC; and
• the Advisory, Conciliation and Arbitration Service What reasonable adjustments are - Reasonable adjustments at work.

Working Health Services Scotland (WHSS - Working Health Services Scotland (WHSS) - Health and Well-being (nhsinform.scot)) is a Scottish Government funded NHS service that provides free and confidential advice and health support for people who are self-employed or working in companies with 250 or less employees and have a health condition or injury which they feel is impacting on their work.

Racialised minorities

Racialised minorities face numerous barriers in accessing, sustaining and progressing in employment and face discrimination in recruitment practices^[11]. Some evidence suggests that non-British names are consciously or unconsciously disqualified, and that those applicants need to send 60% more applications in order to receive as many callbacks as those with British names^[12]. Recent data also suggest that there is significant drop-off between racialised minorities being selected for interview and those being appointed^[13].

Racialised minorities, on the whole, tend to have better educational qualifications than their white counterparts, yet this is not reflected in employment outcomes^[14]. The gap in employment rate for the minority ethnic population in Scotland is persistently high^[15], particularly so for groups such as racialised minority women^[16]. They are also more likely to be over-represented in low-paid or entry-level roles and under-represented at senior levels. Racialised minorities are more likely to experience bullying and harassment in the workplace, discrimination due to cultural or religious observance and be marked less favourably in performance reviews.

Practices such as improved recruitment data collection, blind sifts, diverse panels and inclusive communication, including targeted promotion of opportunities to local communities or trusted organisations are known to be effective in the recruitment of racialised minorities.

Employers can use the Minority Ethnic Recruitment Toolkit to improve the diversity of their workforce by recruiting more people from minority ethnic backgrounds. Annexes in the Anti-Racist Employment Strategy also provide a range of good practice examples to addressing racial inequality in the workplace.

Women

The gender pay gap exists because women earn on average less per hour than men, and significantly less than men over their careers. A main driver of the gender pay gap is stereotyping from an early age which drives occupational segregation. This means women tend to work in industrial sectors dominated by lower pay and jobs that are undervalued because they are regarded as 'women's work', that is,: catering, cleaning, retail, admin, and caring^[17].

As women are still regarded as the primary care giver, which constrains their work choices, they often work in part-time roles which are typically lower paid in order to balance work with childcare and other caring responsibilities. Supporting women to return to work after having children, such as providing safe spaces to breastfeed or express milk and offering quality flexible working arrangements, is key for women who have caring commitments or health issues, such as menopause, to progress. This is particularly the case for women in the 50-64 age group, where the gender pay gap is at its highest. Disabled women and racialised women can face compounded barriers. Inaccessible and irregular public transport systems, especially in rural areas, and public transport that does not feel safe, also act as barriers to fair work for women. Violence against women and girls (VAWG), such as domestic abuse, sexual harassment and commercial sexual exploitation is often not seen as a workplace issue. However, women’s experiences of violence and abuse can have a detrimental impact on their employment. It can limit women's opportunities to do their job to the best of their ability and progress in the same way as men can, which in turn dilutes diversity at senior management levels.

The Close the Gap resource Think Business, Think Equality self-assessment tool is designed specifically for SME employers to enable them to act on the causes of the gender pay gap. For larger employers with over 250 staff, the Close Your Pay gap toolkit provides a range of guidance and advice to help employers calculate and report on their gender pay gap as required by the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 and identify actions to reduce it. It will also be helpful for public sector employers reporting their gender pay gap.

Workers aged over 50

Though some over 50s workers are well represented in senior positions (white men in particular), they face barriers to entering and staying in work for as long as they wish. This is driven by several factors. They have an increased risk of developing a health condition or experiencing more severe symptoms of existing conditions^[18]. Older workers, especially older women, are also more likely to have caring responsibilities for grandchildren, partners or their own aging parents. This results in the need to work reduced hours or stop work entirely. Flexible working has therefore found to be of significant benefit to this age group.

They can also experience discrimination in the workplace, such as ageist stereotypes, recruitment and promotion practices that imply a preference for younger candidates, e.g. job adverts that use terms such as “energetic”, “tech-savvy” or “junior role”. Over 50s workers may also experience digital exclusivity when looking for jobs or skills opportunities. Advertising exclusively online or through social media can miss or deter applications from this group. Over 50s workers have widely varying work and life experiences and skills so employers should recognize and embrace these benefits to their workforce.

Resources that employers may find helpful, include the Good Recruitment for Older Workers: A guide for employers from The Centre for Ageing Better; the Understanding older workers in Scotland report from CIPD; and the guide to Support over 50 back to work.

Outcomes

By taking action to reduce the inequalities driving age, gender, disabled and race pay and employment gaps and to widen and improve diversity and inclusion in their organisation, an employer can tap into a rich source of available talent and potential. This makes good business sense and enables people to build a career now and for the future. It can also highlight current practice and areas for change and intervention, helping to create a culture of equality and diversity in the workplace and benefiting workers and employers alike, such as:

For employers

Increasing diversity, including the gender balance, in leadership roles leads to better decision making, improved performance and higher profitability across the organisation. Positive relationships and diverse teams can generate creativity, innovation, motivation, and loyalty, helping to improve productivity, profits and business growth. This can help to make workers feel valued which improves the retention of skilled people and reduces recruitment costs. Workforce diversity helps organisations to better understand and meet the needs of a diverse customer base; this can give them a competitive advantage in attracting a wider pool of customers who see themselves reflected in the workforce composition.

For workers

Simple improvements to the workplace environment and practice convey positive messages about the organisational culture employers wish to create and help ensure workers feel supported and valued. Workers' mental health and wellbeing can improve if their employer introduces practices that support a good work-life balance and systems to tackle discrimination, bullying and harassment which can help reduce absenteeism and attrition. Fair working practices can also provide increased security in employment and financial wellbeing for workers.

Good practice examples

Although some of these examples are suggested best practice for groups of workers with specific protected characteristics the examples should be able to be applied to and benefit any group and especially those with intersecting barriers to fair work.

• The organisation establishes a baseline of their employee composition and gathers disaggregated data at every stage of the recruitment process to track the characteristics of who applies, who is invited to interview and who is appointed, for every role. This data is then used to monitor whether there are any issues or blockages in the process that work against underrepresented groups being recruited and promoted.
• Governance structures include appropriate representation from groups with protected characteristics on boards and in senior decision-making positions including, disabled people, racialised minorities, women, young people.
• Workers have opportunities to influence the organisation's approach to workplace equality, including by sharing their own experiences and being involved in developing solutions. See section on Effective Voice.
• All staff have safe spaces and opportunities to discuss their support needs or raise issues such as bullying and harassment and are confident that concerns will be dealt with appropriately and acted on by senior leaders.
• Staff equality groups and networks are established.
• Good quality training is provided covering each distinct equality group and includes the practical steps that leaders, HR, line managers and staff can take to remove barriers for equality groups and foster an inclusive workplace culture.
• Recruitment, retention and promotion processes are free from bias and discrimination, for example, practising anonymised recruitment, application and interview processes that are accessible to all; diversity in interview panels; exit interviews are used to understand the reason a person is leaving; and evidence and data is collected and used to ensure all of the above is implemented effectively.
• The organisation makes use of Positive Action initiatives and applies them where appropriate to help groups overcome disadvantages in recruitment and progression. See the Equality and Human Rights Commission and ACAS.
• Flexible working is encouraged and enabled across the organisation. See section on Flexible Working.
• Employers and disabled employees make use of resources such as Access to Work: get support if you have a disability or health condition: What Access to Work is - GOV.UK (www.gov.uk) Disability Smart Management Tools - Business Disability Forum and seek advice from the Disability Employment Advisors at a local job centre.
• Employers are aware of their responsibility to make reasonable adjustments to reduce the disadvantage that disabled employees may face. A guide is available from ACAS here: What reasonable adjustments are - Reasonable adjustments at work - acas
• Employers promote and support mentally healthy workplaces where mental health and wellbeing is meaningfully discussed and where stigma and discrimination is addressed. See Supporting a mentally healthy workplace - Workplace guidance - Healthy Working Lives - Public Health Scotland
• Employers encourage their workers to understand their employment rights. Signposting to organisations such as ACAS (Disability at work | Acas) can assist in this.
• There are career progression pathways for all groups ensuring that no one is penalised for career breaks due to caring, health issues or pregnancy and maternity.
• Enhanced maternity, parental and adoption leave and pay are available for all staff, and mothers and partners are supported to return to work through keep in touch days and refresher courses.
• A private, healthy and safe environment is provided for breastfeeding mothers to express and store milk. Health & Safety Executive, Breastfeeding and returning to work | Parent Club,
• The organisation signs up to Breastfeeding Friendly Scotland which aims to help businesses and people who breastfeed know their rights and responsibilities.
• The organisation provides support to women experiencing menopause in the workplace. Information is available from NHS Inform and Close the Gap.
• The organisation engages with Close the Gap’s Equally Safe at Work, to gain accreditation or participate in the community of practice, and recognises that VAWG is a workplace issue.
• Staff and policies recognise Commercial Sexual Exploitation as a form of VAWG and support the policy criteria, applying these to relevant policy and practice.
• The organisation is a recognised Carer Positive employer.
• The organisation has a safety policy for workers who finish work outside of public transport hours to enable them to get home safely.
• Job opportunities are promoted among under-represented communities beyond mainstream channels (e.g. through trusted organisations, minority ethnic press, community centres and leaflet drops).
• Events that promote diversity and inclusion are organised to enhance awareness and understanding among all staff (e.g. Black History Month, International Day of Disabled People).

Offer flexible and family friendly working practices for all workers from day one of employment

What this means

Flexible working and family friendly working practices take many forms including, but not limited to, part-time work and job share, flexitime, compressed hours, term-time, staggered hours, and working remotely and from home^[19]. Flexible working can also be a reasonable adjustment for disabled workers or those who have a long-term health condition. It is an important aspect of Fair Work and recognises that being able to balance work with other commitments enables workers to participate and contribute more fully and productively in the workplace whilst protecting their wellbeing and improving job satisfaction.

A fair work employer will go beyond current legal obligations as required of the Employment Relations (Flexible Working) Act 2023 by proactively offering all workers flexible working arrangements from day one of employment over and above their ‘right to request’.

Genuine flexibility helps to make work possible for people who might otherwise be unable to access, re-enter and sustain employment; creates more diverse and inclusive workplaces, and provides greater opportunity and security for workers. Flexible working will vary from employer to employer and not all jobs in all sectors or within an organisation will lend themselves to the same type or level of flexibility; equally, workers’ needs will vary. There is no one-size-fits-all approach and flexible working practices need to work for the individual, the team and the employer.

Flexible working should be adopted as a positive practice and never used to weaken contractual terms or impose new unwanted working practices. When considering introducing new ways of working employers should always consult with workers, and where present trade union or other worker representatives, to ensure both the worker’s and employer’s perspectives are properly considered, and any unintended consequences are avoided. The needs of employers and workers are likely to change over time and regular review of policy and practice will ensure appropriate provision is in place.

Outcomes

For workers

People who can access flexible and family friendly working practices are better able to harmonise their work and life commitments. This can help them feel more enthusiastic and fulfilled and enable them to develop their skills^[20] and it is good for mental health and overall wellbeing. Flexibility in hours and location can be invaluable for those with caring commitments or preparing for retirement; and people balancing multiple roles or interests. It is of particular benefit to disabled people and those with long term health conditions to who may need additional time or support to be ready for or get to work, or who need additional breaks and/ or shorter working days at times. It is also of particular benefit to women experiencing menstrual issues or menopause while at work. As women are often the primary carer in a household flexibility and enhancing parental leave and pay provision can help support women to fully participate in employment and aid their career progression; it can also increase opportunities for workers to share caring responsibilities more evenly by, for example, utilising shared parental leave.

For employers

Employers who offer flexible and family friendly working practices attract diverse talent, have happier, more engaged workers and increased productivity^[21]. Sixty-seven percent of senior Scottish business leaders who offer flexible working say it has a positive impact on productivity; 70% say it helps worker loyalty and 66% noted reduced sickness and absenteeism^[22]. It also helps minimise the loss of valued, skilled workers and the resulting recruitment and upskilling challenges. Offering flexibility allows employers to proactively support workplace equality and tap into an under-utilised talent pool which can help them be competitive, improve their reputation, and attract top new talent and customers^[23].

A range of resources to support employers to adopt flexible working is available, including through Flexibility Works, the Enterprise Agencies and CIPD. Timewise also have guidance for line managers and employees, as well as how to hire flexibly.

Good practice examples

• Ways of Flexible working
  • Employers have introduced flexible working practices such as part-time work and job share, flexitime, compressed hours, term-time, staggered hours, working remotely, working from home and hybrid working.
  • A 4-day week which offers reduced hours with no loss of pay or conditions is introduced.
  • Trial periods or pilots are used to test workable solutions for the individual, team and employer.
  • Flexible working is offered as a temporary arrangement to accommodate particular circumstances with review points agreed at the outset by the employer and the worker.
  • Employers with international connections provide flexibility on hours to manage time differences.
  • Enhanced provision is available to support workers with families, such as more tailored maternity, adoption, and shared parental leave and pay.
• Organisational approaches
  • Organisational policies and practice are in place to support flexible and family working, developed collaboratively by the employer, workers, trade union (where present) or other worker representative, in line with legal requirements in terms of reasonable adjustments and and are regularly reviewed.
  • Employers and workers have constructive conversations about requests for flexibility.
  • Effective use of flexible and family friendly practice is modelled from the top down.
  • Flexible and family friendly options are available at all levels in the organisation and for all staff – not just women or mothers, and to encourage partners to share caring responsibilities.
  • Employers, workers and, where recognised, union or other worker representative, collaborate to agree an approach to flexible and out-of-hours working, with clear boundaries between work and non-work time - enabling workers to disconnect outside working hours.
  • Jobs are designed around business outcomes, not based on fixed locations or fixed times to provide flexibility.
  • Flexible working and family friendly policies are highlighted in job adverts.
• Supporting managers
  • Managers get appropriate training and support to enable them to effectively manage individuals who work flexibly.
  • Learning and development is arranged to accommodate different flexible working arrangements and, where practicable, technology is used to facilitate access.
  • Accessible systems and protocols, such as IT equipment and digital diaries, are used to facilitate effective work practices, enabling remote workers to participate alongside their site-based colleagues.
  • Meetings are arranged at times that enable workers to attend (in person, by phone or virtually) so everyone can contribute and feel included.
  • Employers develop and maintain a home and other remote working policy with consideration given for workers with protected characteristics and suitable provision to support workers’ mental health and overall wellbeing.
  • Working from home and other remote working is not monitored by invasive worker monitoring software.
  • Hybrid working is offered to support disabled workers, which ensures that talented employees are retained in and attracted to roles. Advice is available from the EHRC: Supporting disabled workers with hybrid working: Guidance for employers | EHRC (equalityhumanrights.com)

Oppose the use of fire and rehire practice

What this means

There is no legal definition of Fire and Rehire practices. ‘Fire and rehire’ is the terminology currently most used to describe the practice of ‘dismissal and re-engagement’. It is described by ACAS as one option that may be available to an employer seeking to effect changes to employees’ contractual terms; it involves dismissing employees and immediately re-engaging them on a new contract with new terms, with the new terms issued to commence on the day following the termination date of the current contract, in circumstances where the employees’ agreement to the changes has not been obtained. The term is also used to refer to employers holding out the prospect of dismissal and re-engagement to employees or their representatives during negotiations about changing terms and conditions.

We recognise that the vast majority of employers consult and reach agreement when they have to consider making changes to contracts and will only consider using fire and rehire practice as an exceptional and pressing business necessity.

However, whilst fire and rehire practice may not in all circumstances be contrary to employment legislation, the Scottish Government’s position is that such practice does not align with the criteria and expected practice of Fair Work.

Therefore, an employer wishing to access public sector grants or other funding or to deliver a public contract in Scotland will be expected not to use fire and rehire practice.

Scottish Ministers have written to chief officers of public sector organisations to advise them that this new principle has been introduced and that they should apply it along with the other Fair Work First criteria. Further guidance on the application of Fair Work First criteria in grants, other funding and contracts is contained in the ‘How the guidance should be used’ section of this guidance.

What is fire and rehire

An employer is likely to be using fire and rehire practice if it uses dismissal and re-engagement for the purpose of diminishing terms and conditions as described above. Employers should not use the threat of dismissal and/or redundancy in order to pressurise staff into accepting changes to terms and conditions.

The benefits of an alternative approach

Under Fair Work criteria and the good practice adopted by organisations of all sizes across Scotland, an employer should - from the start of the process - ensure that workers’ voice is fully considered through full and meaningful consultation, and including the relevant union/s if recognised, or other appropriate worker’ representative if a union is not recognised. The employer should also fully consider all alternatives, drawing on support available from the Scottish Government and its agencies, ACAS, CIPD and other relevant parties.

Outcomes

For workers

Where an employer engages constructively with staff to reach voluntary agreement on contractual changes, workers can continue to be employed under terms and conditions they have agreed to, giving them the security of employment and earnings. They have a voice in the workplace and feel engaged in decision-making, as well as an ongoing sense of respect, security and fulfilment which contributes to their overall wellbeing.

For employers

In avoiding a dismissal and re-engaging process, the employer can retain skills, motivated staff and protect positive relationships with staff and unions. They can also reduce risk of employment-related litigation and the significant legal and potential damages costs this could bring, along with the time, resource and potential disruption of engaging with the process. In addition, they can avoid the considerable time and cost associated with replacing personnel who do not accept the new terms and any subsequent training.