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The following links to external websites will provide you with more information:- ACAS - hr and workplace guidance
- Business Link - free and practical advice to help businesses
- Directgov - employment rights
- HMRC - statutory payment calculators
- BIS - Department for Business, Innovation & Skills
latest news...
November 2011 - More or Less...Employment Law
The Government has published a document called “One-in One-out Second Statement of New Regulation” announcing proposals to de-regulate business as part of its Red Tape Challenge. This document covers a wide range of areas including procurement, health & safety and employment law. The full document can be viewed at www.bis.gov.uk/assets/biscore/better-regulation/docs/o/11-p96b-one-in-one-out-second-statement-new-regulation
In the area of employment law and HR, the paper announced the government’s firm intentions to introduce fees for lodging employment tribunal claims.
Consideration is also being given to increasing the qualifying service period for an employee to bring an unfair dismissal from one year to two years. This will be a major step and revert us to the position pre-1999.
Further the government will be consulting on removing requirements in the only recently introduced Equality Act 2010 for businesses to take reasonable steps to prevent harassment of their staff by third parties, on the basis that this piece of legislation costs business £0.3 million annually in relation to something over which they have no direct control.
Watch this space…
October 2011 - Click on the following link to see an article by Kate Lawson on the Demise of the Default Retirement Age:
http://magazine.tunbridgewells.so and turn to page 125 for - Retiring: the Law (October 2011)
October 2011 - The Social Not-work?
With Social Networking sites so much a part of working life, many employers face the conundrum of wanting employees to use these sites to promote their business, and yet needing to control how the sites are used, what is said by their identifiable employees on these very public forums and how much working time is spent on these sites.
It is indeed key to control how employees behave on these sites, as the reputation of businesses can be damaged by “posts” and employers may be held liable for discriminatory comments made by their employees on these sites.
Social Networking is for employers without doubt a minefield of the modern world! With this in mind, ACAS has produced a number of Guidance Notes on Social Networking, offering tips on how to manage the impact of social networking on performance management, on recruitment and on disciplinary and grievance issues. There is also an excellent section on How to Draw Up a Social Networking Policy, which includes practical tips, as well as concise explanations of the legal considerations involved. These are available on the ACAS website at www.acas.org.uk
September 2011 - Equality for Agency Workers
The Agency Workers Regulations come into force on 1 October 2011 and apply to agency staff who are assigned to do temporary work for an end client, called the hirer, through temporary work agencies. These Regulations provide that all agency workers must be able to access a hirer's collective facilities and amenities and have ccess to information about its job vacancies from the first day of their assisgnment with the hirer. In addition, once they have worked for the hirer for 12 weeks, agency workers are entitled to the same basic working and employment conditions, including pay, annual leave and rest breacks, as the hirers comparable employees.
The Agency Workers Regulations are not retrospective and so agency workers already in place on an assignment on 1 October 2011 will only start to accrue their 12-week qualifying period from 1 October 2011. All businesses which engage agency workers are encouraged to carry out an audit of their agency staff, to assess the basic terms they receive and how these terms compare with equivalent employees.
August 2011 - Working with Wage Cuts
In a recent case before the Employment Appeal Tribunal (EAT), the employer needed to cut costs to increase profi and therefore asked employee to accept a pay reduction of 5%.
The claimant in the case refused to accept the paycut and was dismissed by his employer, after 7 years' service. Out of 77 employees, the claimant was the only one who continued to refuse to accept the reduction in his wages.
The EAT found that it is not the case that a wage-cut isonly possible if the very survival of the business depends on it. Nor is it correct to assess the employer's decision to dismiss by asking whether it was reasonable for the employee to accept the lesser terms offered to him or her.
The test is whether the employer, having established a good or substantial reason the paycut is required, acts reasonably in dismissing an employee who refuses to accept the paycut.
July 2011 - Lost my job! LOL?
As social networking increasingly dominates the way we communicate it is important that your business provides employees with guidelines about their use of social media sites such as facebook.
Weatherspoons plc has successfully defended a claim for unfair dismissal after an employee was dismissed for making inappropriate comments on facebook about two customers who she alleged had verbally abused her. In line with their social media policy Weatherspoons plc dismissed her for gross misconduct and argued that her comments lowered the company’s reputation.
It is crucial that companies make clear to their employees what access to social media is permitted within the workplace as well as the impact comments made during or out of working hours could have on the business and its reputation. It should be transparent to employees that failure to follow any guidelines could lead to disciplinary action and in serious cases, dismissal.
June 2011 - Reliable References
A recent case has highlighted the importance of ensuring that the references your business gives are always true, fair and accurate even where the business wants to ‘encourage’ the employee to move on to pastures new.In this case Mr McKie received an excellent reference from Swindon College when he left their employment. Some 6 years later he found himself in a new job in which he was required to work closely with his former employer. The then HR Director emailed his new employer stating that they would not want him to visit the college premises due to concerns about his conduct when he had been employed with them. This email resulted in Mr McKie losing his new job. Mr McKie was successful in his claim against the college and the court found the college responsible for his losses.
Employers must remember the duty of care they owe to both the employee and the prospective employer when providing references. The safest approach is to only provide references which give factual information such as job title and dates of employment.
May 2011 - Can you afford to be hospitable?
The Bribery Act will come into force on 1 July this year and the government has now published guidance to assist businesses in their preparation for it.Under the Act businesses and senior individuals will become liable for failing to prevent bribery from occurring within their organisation. However, there will be a defence available if they can prove that there were adequate procedures in place to prevent bribery.
The guidance does state that businesses should still be able to entertain their customers and contacts so there’s no need to worry about having to cancel that day out at the races! Small businesses can take comfort from the fact that the adequacy of procedures put in place will be considered against the size and nature of the business.
April 2011 - Temps in the canteen!
Over a million workers are hired via an agency in the UK and recent research suggests that many businesses are not prepared for the Agency Workers Regulations which will come into force on 1 October 2011.
After a 12 week qualifying period agency workers will be entitled to receive the same basic pay and working conditions as other permanent employees. In addition from the start of their assignment agency workers will be entitled to access certain facilities such as canteens and crèches and be made aware of vacancies within the organisation.
It is important that businesses assess the impact the Regulations will have on them and plan for the necessary changes to both internal practices and policies and employment agency terms and conditions.
March 2011 - Tribunal Shake-up
A consultation has recently been launched by the Department for Business, Innovation and Skills and the Tribunals Service as the new government seeks to improve the resolution of workplace disputes.One proposal is to extend the length of service needed to bring an unfair dismissal claim from 1 to 2 years. Arguably this may not reduce the overall number of claims as the average claimant tends to have been employed for more than 2 years anyway; in fact it could encourage back door discrimination claims as they do not require a minimum amount of service. Other proposals include charging for lodging a Tribunal claim and the introduction of fines for businesses that breach employment rights. The government believes that there should be an increase in the use of workplace mediation and employers who have used workplace mediation are being encouraged to share their experiences.
The consultation is seeking views from businesses and closes on 21 April 2011.
February 2011 - Anytime, Anyplace, Anywhere
Both employees and businesses need to prepare for a more flexible way of working both in terms of working patterns and the length of the working life. As we all live longer and have higher expectations of our quality of life, the days of 9 to 5 until we are 65 are clearly over.The government has confirmed that from 1 October 2011 employers will no longer be able to compulsorily retire an employee at the age of 65 unless the retirement can be objectively justified. Further, from 6 April 2011 the right to request flexible working will be extended to all parents of children aged under 18. The government has also indicated that it will be consulting on the possibility of extending the right to all employees. Fathers of children due on or after 3 April 2011 will also be able to take additional paternity leave and receive additional statutory paternity pay.
Businesses need to plan how they are going adapt to these changes and make sure that their policies and procedures are up to date.
January 2011-Happy New Year?
2010 saw employers having to embrace a variety of changes and spring 2011 promises to be no less challenging with a number of changes being introduced in April.
The government has proposed that the default retirement age will be phased out and employers need to consider if they are going to retain a retirement age whether they can objectively justify it. All businesses will be required to consider requests for time to train from their employees; employers do not have to agree to the request but have to consider it and have a good business reason for refusing it. The right to request flexible working is going to be extended and mothers will be able to transfer up to 6 months of their maternity leave to fathers.
We’ll see more Tribunal decisions concerning the Equality Act and if you haven’t already done so you need to make sure your policies, procedures and practices are up to date otherwise you could easily fall foul.
December 2010 - Snow Show
A white Christmas and the prospect of snow fights and snowman building are all very enticing. However, bad weather can be difficult for employers to manage with increasing absence levels.
If your business premises remain open then the onus is on employees to attend work and if they do not, their absence is unauthorised. However, there are a number of factors you need to consider before deciding whether or not you have to pay employees such as has a ‘custom and practice’ been established to pay employees unable to get to work.
It is advisable to have an adverse weather policy in place which sets out your policy such as employees having the option to take the day as holiday, be unpaid for the day or be paid and make up the time at a later date. Where appropriate, you may allow employees to work from home. It is important to act consistently and ensure that any policy is fair to those employees who make the extra effort to make it into work.
November 2010 - You’re fired!
According to a recent Supreme Court decision a Lord Sugar Apprentice-style face to face dismissal may be the best way to avoid any doubt over the actual effective date of termination.
In this case the employer sent the employee a dismissal letter by recorded delivery which a member of her family signed for while she was away and she read a few days later. She argued that the effective date of her dismissal was the day that she read the letter and became aware that she had been summarily dismissed. The Supreme Court rejected her former employer’s appeal and confirmed that a letter summarily dismissing an employee will not be effective until the employee has read the letter or had a reasonable opportunity of doing so. Employers should bear this in mind in particular when terminating the employment of an employee who is close to acquiring 12 months’ continuous service and when assessing the employee’s time limit for bringing an employment tribunal claim.
October 2010 - Feeling Harmonious?
It has been a long time coming but the key parts of the Equality Act 2010 are now in force harmonising discrimination law. It is important that businesses are aware of the new definitions and concepts and consider how the Act will impact on their organisation and their people.
All policies and procedures should be reviewed and particularly your equal opportunities policies. Application forms and recruitment procedures need to be considered since an employer can no longer ask questions about an employee’s health pre employment apart from some limited exceptions. The Act covers harassment by third parties and employers need to consider whether or not they will inform suppliers, customers and contractors that harassment of employees will not be tolerated.
September 2010 - Retirement-Old Hat?
The working life is longer than ever and employees are increasingly realising they cannot afford to retire. Employers have the ability to retire employees at a certain age subject to their right to request to work longer. However, the Government has recently opened consultation on its proposed withdrawal of the Default Retirement Age (“DRA”) altogether. If the DRA is withdrawn it will be more difficult for employers to have a compulsory retirement age and without it the employment of older employees would have to be terminated in the normal way i.e. there would need to be a fair reason for dismissal and an appropriate procedure must be followed. Any issues of age discrimination would also need to be taken into account. This is likely to focus on performance and arguably is not a dignified way to end an employee’s working life.
Businesses have until 21 October 2010 to reply to the consultation paper and in the meantime should be considering whether they need to retain a compulsory retirement age and if so, the justification for it and how they will implement it.
August 2010 Exploiting Students?
Many students this summer will have high hopes for their work experience or internship, but will they gain a real insight into their chosen career or will they find themselves working long hours for little or no pay? Businesses should be aware that if they offer unpaid internships or extended periods of work experience they could be falling foul of national minimum wage regulations. In practice HMRC will look at what is happening in practice. If someone is carrying out duties similar to other employees over an extended period of time there is a high possibility they are in fact an employee or worker entitled to be paid the minimum wage and may have other employment rights. Work experience can offer people a real insight into a business and provide valuable experience which will stand them in good stead when applying for positions in the future. However, unfortunately this is not always the case and businesses could regret temptations to exploit people offering free labour.
July 2010 All change?
As the Coalition Government settles in businesses will be trying to anticipate the approach they’ll be taking to employment legislation. In particular, speculation has been growing about whether the planned implementation date for the Equality Act of October 2010 will be delayed. There is a strong possibility that its implementation could be phased or delayed in its entirety. The Equality Act will make important changes as well as consolidating existing discrimination legislation. It is not yet clear whether the new government will continue to support changes such as positive action which would allow employers to favour under-represented groups during the recruitment process.
What is clear is that employers should be preparing for change. It is time to consider the provisions and how they will potentially impact on your business as well as reviewing your diversity and equal opportunity policies.
June 2010 World Cup Fever
As World Cup excitement builds amongst football fans you may be anticipating last minute holiday requests and an increase in absenteeism either on the day of the match or the day after (if celebrations get out of hand), but other issues could trip up even the most considerate employers. You may plan to allow employees to watch certain matches at work or leave early if they make up the time, but consider the different nationalities within your workforce when showing flexibility (or matches) to avoid claims of race discrimination and don’t forget to consider equivalent flexibility for non football fans.
Employers need to have a clear policy in place and remind employees of holiday and absenteeism procedures. Make sure employees are aware that unauthorised absence will be investigated and disciplinary action taken in the normal way.
On the plus side, while employers may see a drop in productivity during the tournament, taking the opportunity to show goodwill and engender some team spirit may well be better for relations in the longer run.
May 2010 - A green settlement
An out of court settlement has been won for the former Head of Sustainability of Grainger plc, Tim Nicholson prior to his Tribunal hearing. His case attracted a lot of publicity last year when a court accepted that a belief in climate change could potentially be protected from discrimination. Unfortunately, we won’t now find out if he could have shown that his redundancy was a direct result of his green beliefs.
April 2010 - Dads get to change nappies too!
At the moment Dads are able to take up to 2 weeks paternity leave following the birth of their child but they can’t make use of any unused maternity leave if Mum decides to return to work early. However, additional paternity leave and pay will come into effect on 6 April to apply to babies due on or after 3 April 2011. Mums will be able to transfer up to 6 months of their maternity leave period to the Dad when they return to work. Additional paternity leave will be paid at the same rate as statutory maternity pay where it is taken within the Mum’s maternity pay period. It will be interesting to see how many Dads are brave enough to swap their briefcases for nappy changing bags.
March 2010 - Making Savings
As an organisation grows and develops it is often necessary to bring employees’ terms and conditions of employment in line with the new business model. This can be tricky to achieve in practice especially if employees are not prepared to give their consent. ASDA implemented changes to employees’ pay scales after a period of consultation relying on a variation clause in their staff handbook where employees objected to the changes. The Employment Appeal Tribunal found in ASDA’s favour since they had not acted ‘capriciously or arbitrarily’ and were not in breach of the implied contractual duty of mutual trust and confidence. Whilst employers still need to consult carefully over any proposed changes a variation clause added to contracts of employment will give your business added flexibility.
February 2010 - Time for a holiday?
As the New Year gets underway it will not be long before employees are putting together their holiday plans for 2010. A recent case found that an employee who does not follow either statutory or reasonable contractual requirements for taking holiday could lose any untaken holiday at the end of the holiday year. This case is reassuring for employers as it does not suggest that employers should ensure that employees spread their holiday entitlement throughout the holiday year. However, it is good practice to make sure you manage holidays proactively; encourage employees to use their holiday entitlement but remind them - if they don’t use it they may lose it.
January 2010 - Are you prepared for 2010?
How do you see your business developing in 2010? Will you be experiencing the same problems and frustrations? Consider getting the most out of your employees by tackling those lingering performance concerns or absence levels now. These issues can take time to deal with but are a real cost to your business and the demoralising effect employees who aren’t pulling their weight can have on the rest of your workforce is the real hidden danger of inaction.
2010 could see the passing of the Equality Bill which will consolidate existing discrimination legislation as well as introducing a number of changes such as promoting greater transparency on gender pay discrimination. Would your business benefit from equality and diversity training? Are your equality policies up to date?
December 2009 - Have a green Christmas
Remember to recycle your office Christmas tree! How much wine do we need for the Christmas party? As your company builds up to Christmas, the religious origins of this celebration can get overlooked – but employers need to be sensitive to employees who don’t observe Christmas and make sure any celebrations and gifts are inclusive whatever one’s religion or belief. This duty on employers continues to widen, and a recent case even found that a “belief in the environment” could potentially have the same protection from discrimination as a religious belief.
The internet brings Christmas even further into the workplace. Does your reception look like Santa’s Grotto? Be clear to employees about whether personal deliveries to work are acceptable. Are employees spending working hours shopping on line? Putting clear policies in place make it easier to manage these situations without becoming Scrooge.
November 2009 - Are you ready for retirement?
As all of us expect to live longer and remain active in our old age, the traditional idea of retirement is increasingly becoming outdated. Current legislation allows employers to plan for the retirement of employees approaching 65 and an employee’s request to continue working can be refused - as long as the employer follows a set procedure there is no obligation to keep an employee on. This has recently been challenged by charities such as Age Concern but the High Court recently ruled that 65 was here to stay, well at least for the time being. 65, as a default retirement age, will be reviewed in 2010 and at which point it could be abolished all together. What is certain is that businesses need to plan for the retirement of their employees and be prepared to keep them working for longer.
October 2009 - Sickness Absence – How much does it cost you?
On average an employee working in the private sector will take off sick 6 days a year at considerable cost to their employer. It is not just the cost of any sick pay either; there will be a loss of productivity, the expense of any temporary cover and the effect on the morale of other employees who have to pick up the pieces and customers who are left unsatisfied.
Earlier this year the House of Lords ruled that employees continue to accrue annual leave whilst off sick and more recently the European Court of Justice decided that an employee had the right to claim back holiday when off sick during a period of annual leave.
More than ever businesses cannot afford to let sickness absence go unmanaged. A sickness absence management policy which is adhered to in practice has the potential to get employees back to work quicker, reduce the number of repeated spells of sickness absence and decrease the overall cost to the business.
September 2009 - a fresh start
As summer ends and employees return from their holidays it is an ideal time to take stock and ensure that your business is up to date with its people issues.
Are up to date employment policies and procedures in place and if so, are they applied consistently in practice? Disciplinary and grievance procedures should by now have been updated to be in line with the ACAS code. ACAS has recently published its annual report which showed that a high level of the calls it receives from employees are about discipline, grievance and dismissal issues.
Dress codes are often relaxed over the summer and a timely reminder about the usual dress code may be required. It is important to remember that dress code must not be discriminatory and allow for different cultural and religious backgrounds. Clothing company Abercrombie & Fitch has recently been in the news after an employee with a prosthetic arm claimed that she was made to work in the stockroom because she did not fit in with the company’s ‘look policy’.
July 2009 - changing terms and conditions of employment - is it legal?
As businesses increasingly look for ways to cut costs, changing employee’s terms and conditions of employment has become more common; changing working hours, withdrawing expensive benefits or even reducing pay. Surely this can’t be legal? In short, a contract of employment cannot generally be changed unilaterally. However, the contract may give the employer sufficient scope and the contract should be checked carefully to see what discretion there may be and what changes may be covered.
As an employer, the first step is to obtain the consent of all affected employees. This is likely to be easier where the changes are with a view to saving jobs. Careful management of the process is essential and advice should be sought on the procedure to follow and what to do if one or more employees refuse to agree.
As an employee, if unhappy with the changes being proposed it’s crucial to make this clear; otherwise your inaction could be taken as agreement. There are a number of options ranging from refusing to work under the new terms (leaving your employer to take action) to resigning and claiming constructive unfair dismissal. Above all, an employee must be consistent in which route they follow.
June 2009 - social networking - an effective way to recruit?
Research carried out by Harvey Nash and the Department for Work and Pensions has shown that social networking sites such as Facebook and Twitter are increasingly being used as part of the recruitment process as employers look for employees with an online presence. Whilst online profiles enable employers to find out more about potential employees it is important to consider the potential risks of using that information and its real value. Any recruitment process must be open, fair and non discriminatory and discovering personal details about some applicants could lead to accusations of discrimination from those who are unsucessful.
May 2009 - are you fit?
A new 'fit note' will be introduced in Spring 2009. It will replace the current sick note and is aimed at enabling employees to stay in work as well as aiding the return to work process by focusing on what an employee is capable of doing. Read more in the newsroom area of the directgov website.