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Is an employee entitled to draw sick pay while working in a second job?

It might seem common sense to answer “very rarely” to this question but a recent case has pointed a spotlight on this matter, providing clarity for many employers.

The background

An employed hospital consultant had a second job seeing private patients one day per week. The hospital was aware of this. She submitted a series of medical certificates stating that she was unfit for work at the hospital and started a long period of leave. During this, however, she continued to see her private patients. Although there was nothing in her contract with the hospital to say she couldn’t carry on her private work during a period of sick leave the hospital’s Medical Director had written to her (and spoken to her) to say she should not do this as it “could be construed as fraud”. When the hospital found out that she was doing this they started disciplinary proceedings against her.

This started with a letter convening the disciplinary hearing. It was headed “Allegation into the undertaking of private practice during the period when certified as medically unfit” and contained the sentence “I must advise you that the allegation is potentially one of gross misconduct and if substantiated could lead to dismissal.”

Perhaps unsurprisingly, given the circumstances, the disciplinary panel decided that the consultant had committed gross misconduct and dismissed her. They sent her a letter containing the phrase “The Panel felt that this allegation constituted fraud which could be considered as gross misconduct”.

An employment tribunal rejected the consultant’s complaint of unfair dismissal although she was given leave to appeal to the Court of Appeal.

The appeal centred around the use of the term “fraud” in the dismissal letter. The Court of Appeal, however, was very clear in its ruling. The reason for dismissal was that the consultant had done private work while on sick leave. They ruled that the employment tribunal was indeed justified in finding the dismissal fair. Although the use of the term “fraud” may have been misleading they felt that the substance of the misconduct was correct and warranted dismissal.

The Court of Appeal made a very clear statement about employees who try to justify working in a second role while continuing to draw sick pay:

“The lay members of this Tribunal would emphasise that in the employment world claiming sick pay whilst working elsewhere is in general regarded very seriously by employers. In their experience any substantiated case almost inevitably will lead to dismissal, not least because if it did not, the employer might find it difficult to distinguish on any proper basis between the cases of other employees doing the same. That is not, however, to say that it is an inevitable conclusion”.

The court said this represented the general principle in future cases.

What do you need to do as employers?

Although the basic concept of this might appear obvious it is always worth spelling things out to employees when producing (and communicating) sickness and absence policies. Our advice is always to be as clear as possible and make sure employees are aware of exact circumstances and likely outcomes.

If you require advice on this or any other matters surrounding sickness or absence, please contact Alison.

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A duty to make reasonable adjustments for disabled people – how far should it go?

It is often the case that the law focuses on how an employer should make a reasonable adjustment, rather than their duty to make one in the first place. This was the case in our recent article Can the duty to make reasonable adjustments extend to paying for an employee to have private psychiatric counselling?

If an employer doesn’t know about the need for reasonable adjustments they have no duty to make them. Furthermore, if they could not reasonably be expected to know that the disabled employee is (or could be) placed at a disadvantage by a particular working practice, they can be forgiven for not anticipating any need to change.

Background

A case was brought before the Employment Appeal Tribunal recently concerning a ruling that
an employer was exempt from having to make reasonable adjustments when disciplining a disabled employee for leaving work early without permission, because the employer could not have known that the employee’s disability placed him under a disadvantage in having to request permission to leave work.

In this case the claimant displayed many symptoms of depression, including a tendency to lose concentration and his temper. One day, as a result of this, he left work early, without obtaining permission. At a disciplinary hearing the employer took into account the fact that the claimant had missed his medication that morning but concluded that his action amounted to misconduct and issued him a written warning. The claimant complained to an employment tribunal that this action amounted to a failure to make reasonable adjustments.

The tribunal viewed that the employer had knowledge of the disability (depression) from the claimant’s symptoms. They also found that his difficulty in asking for permission to leave work early was an effect of this. In short, they agreed that in issuing the warning the employer had failed to make reasonable adjustments for the Claimant’s disability.

When this case was brought before the Employment Appeal Tribunal, however, they allowed the employer’s appeal against the finding of disability discrimination. Although they considered that the employer ought to have known that the claimant’s depression constituted a disability, they did agreed that none of the claimant’s symptoms implied difficulty in asking for permission to leave work. As such he was not entitled to reasonable adjustments.

What do you need to do as employers?

Even though the EAT found in the employer’s favour, this case raises an important point concerning best practice. It is not enough to know whether your employees are disabled. This case demonstrates a need to understand the impact on their needs, within the workplace. Importantly, as an employer, you must know of circumstances that could place them at a substantial disadvantage in complying with workplace practices. Whilst it would be inappropriate to delve into the personal circumstances of your employees, taking the time to enquire into their needs could, ultimately, prove beneficial to all.

If you require advice on this or any other matters please contact Alison.

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What’s coming up in 2015 for employment law and HR legislation?

5th & 6th April are important dates…

  • Shared Parental Leave – Parents of babies due on or after 5 April 2015 (and adoptive parents of children placed for adoption on or after that date) will be eligible for shared parental leave. You can read more about this on our website here.
  • Statutory Adoption Leave and Pay changes – The removal of the 26-week qualifying period and increase of statutory adoption pay comes into play from 5th This brings it into line with statutory maternity pay. The Act also allows prospective adoptive parents to take time off “for the purpose of having contact with the child or for any other purpose connected with the adoption”.
  • Maternity, paternity, adoption and shared parental pay will be £139.58 per week from 5 April 2015.
  • Parental leave – All parents of children aged between birth and 18 years old, who have been continuously employed for one year and have, or expect to have, responsibility for a child, will be entitled to take unpaid leave, up to a maximum of 18 weeks in total and limited to four weeks per year.
  • Statutory sick pay – The standard rate of statutory sick pay will increase from £87.55 per week to £88.45.

 

Over the summer…

  • The new health and work assessment and advisory service, “Fit for Work”, is expected to be fully up and running in England and Wales by May 2015. You can read government guidance on this here.
  • A two-year back period on most unlawful deductions from wages claims (commission, bonuses, fees, holiday pay) will apply to claims presented on or after 1st July 2015. You can read more about this on our website here.
  • National Minimum Wage rates are likely to increase from 1st This will depend on the recommendations of the Low Pay Commission’s report, which is due to be delivered to the Government in spring 2015. It is also expected that a new maximum penalty for failure to pay the National Minimum Wage (£20,000 per unpaid worker, rather than £20,000 per employer), will come into force at the same time.

 

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Employment Appeal Tribunal rules that dismissal for abusive tweets was fair

This interesting appeal case sends a clear message out that employees should be held accountable for the content of their social media if they are connected with or followed by other employees and/or customers.

 

The background

 

The claimant was employed by Game Retail Ltd (GR Ltd), a games retailer with over 300 stores across the UK. His job was to investigate losses, fraud and theft in over 100 retail stores. Each of the 300 stores has its own Twitter profile and the store managers have access so that they can tweet.

 

The claimant opened a personal Twitter account and began to follow the Twitter accounts of the majority of GR Ltd stores so that he could monitor any inappropriate activity by employees. His account did not specifically associate him with GR Ltd although one local manager tweeted an encouragement to other stores to follow the claimant and 65 stores did so. The employee made no attempt to use the restriction settings, so his tweets were publicly visible by default.

 

In July 2013, however, an anonymous store manager notified one of GR Ltd’s regional managers about allegedly offensive and abusive tweets posted by the claimant. An investigation identified 28 offensive tweets – several of which contained expletive and obscene language. As a result GR Ltd found the Claimant guilty of gross misconduct and summarily dismissed him.

 

He brought a claim for unfair dismissal and the tribunal held that he had been unfairly dismissed. They felt that his dismissal fell outside of a reasonable response by an employer. The tribunal said the tweets were posted for private use, there was no proof that any employee or customer had access to them and he had not associated himself (or his comments) with GR Ltd. Added to this, GR Ltd’s disciplinary policy did not clearly state that inappropriate use of social media in private time would or could be treated as gross misconduct.

 

GR Ltd, however, appealed to the Employment Appeal Tribunal, it was held that the tribunal had failed to properly test the question of whether the claimant’s usage was indeed private. They noted that the claimant had not restricted his settings to private or set up separate accounts to monitor stores/for private use. He had not discouraged stores from following him and had in fact retweeted the local manager’s suggestion that they do so.

 

The EAT held that the original tribunal should have focused on whether the tweets were offensive and whether other staff or customers might have read them. In particular, the tribunal should have addressed the fact that the Claimant was following 100 stores and was followed back by 65. The EAT considered that it was possible to link the claimant and the employer from the claimant’s following/follower profile and as such ruled that the dismissal was fair.

What do you need to do now?

 

Although the courts do appear to draw a distinction between work related and personal use of social media, this boundary is increasingly blurring. Judgments are increasingly bearing reference to whether it is possible to identify a link between the person and their employer and the ‘net’ of exposure to comments.

 

Employers should take steps to ensure that this is adequately detailed in social media policies – not only setting out the penalties for posting inappropriate content, but providing clear guidelines for best practice and expectations of conduct.

 

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Employment Appeal Tribunal decision on holiday pay and overtime

The EAT recently ruled that employers should calculate holiday pay based on normal remuneration (payment for normal working hours as well as any payments normally paid, such as shift bonuses and commission) and all hours worked, including guaranteed and non-guaranteed overtime (overtime which the worker must work if offered – voluntary overtime is not included). This means that workers could now, potentially, call for previous holiday pay to be recalculated to take this into account.

 

The process for calculation is currently outlined in the Working Time Regulations Act of 1998. It means that overtime, which normally helps to increase average pay levels, is not included when calculating basic holiday pay. This puts the UK at odds with the European Working Time Directive, which doesn’t specify how holiday pay should be calculated and suggests that overall remuneration should be taken into account.

 

Background

 

This recent decision, recommending against this, follows a number of cases involving holiday pay claims from both current and former workers. They argued that overtime and commission should be included in calculations for holiday pay.

 

The EAT heard combined appeals in Bear Scotland Ltd v Fulton and Baxter; Hertel (UK) Ltd v Wood and others; and Amec Group Ltd v Law and others.

 

In Fulton, the Employment Tribunal interpreted the WTR as excluding a provision of ERA in calculating holiday pay to allow for the inclusion of overtime and other components of pay. In Neal v Freightliner, the same thing was achieved by the Employment Tribunal deciding to read additional words into the WTR so that the relevant provisions of ERA would apply to determine the amount of a week’s pay for holiday pay purposes. In Amec, the Employment Tribunal also read words into the WTR.

 

The varying decisions in the original ET claims demonstrate the different approaches that could previously be taken in interpreting the WTR. The ruling by the EAT potentially changes this and may need to result in legislative change in the UK.

 

What does this mean?

 

The appeal was based on a claim that average earnings (taking into account overtime as well as normal remuneration) should be used to calculate holiday pay, not just basic pay. The EAT ruled in favour of this. This applies to the minimum four weeks’ holiday required by EU law and not the additional 1.6 weeks provided by UK regulations or any discretionary holiday on top of that.

 

Could this open a floodgate of back claims?

 

The EAT tribunal ruled that workers can only make back claims if it is less than three months since their last holiday.

 

What do businesses need to do?

 

Businesses should be more aware of taking into account overtime and other normal remuneration, when calculating holiday pay for certain workers. However, workers must demonstrate that the overtime is essential to their job and it is unclear how they will do this. Our advice is to review all holiday pay processes and calculation procedures, as well the ways in which you communicate these to workers.

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Employment law changes… what’s happened this year that you should know about?

The eagle-eyed amongst you will be aware that there seem to have been rather a lot of changes in the employment law world, over the last few months. Although we’ve reported on many of the main changes on our blog here is a handy round up of the key facts.

 

  • In order to strengthen and simplify the civil penalty scheme to prevent illegal working, the UK government has recently reformed the Illegal Working Act. Read more about it here. We sent out a new offer letter to our clients in June, containing the updated criteria, make sure you’ve updated the version you are using.
  • As of Monday 30 June 2014 the right to request flexible working has been extended to all employees with at least 26 weeks’ continuous service. You can read more about this on our blog here.
  • Exclusivity clauses have been banned in zero hours contracts. The changes that came out at the end of June 2014 stated that any provision of a zero hours contract, prohibiting a worker from working under another contract, or prohibits them from doing so without the employer’s consent, is unenforceable.  This change means that workers have total freedom to seek work with more than one employer.
  • HRMC has updated guidance on IR35. This applies when people work for a client through an intermediary or third party, such as hiring a freelancer to work on a contract or project, through a larger agency. You need to be aware of this for occasions when the freelancer might be regarded as your employee if the intermediary (or agency) wasn’t there.
  • Whistleblowing reforms appear to be on the horizon. At the moment a number of non-legislative changes have been set out: These include providing employers with better guidance and a model whistle-blowing policy; a new legal requirement that Regulators report on whistle-blowing annually; some slight changes to the list of prescribed persons (people you can blow the whistle to if you can’t tell your employer) and the ways in which it is updated; as well as minor adjustments to the categories of protected workers.
  • Financial penalties for unpaid employment tribunal awards or Acas-conciliated settlements have been capped at £5,000.
  • The maximum £20,000 penalty for breach of the national minimum wage will apply in respect of each underpaid worker separately.
  • National Minimum Wage Increase. Workers aged 21 and over will be entitled to £6.50 per hour. 18-20 year olds will be entitled to £5.13 per hour. 16-17 year olds will be entitled to £3.79 per hour. Apprentices will be entitled to £2.73 per hour.
  • The statutory two-year service requirement for bringing an unfair dismissal claim will no longer apply in cases where the dismissal is connected with the employee’s membership of the Reserve Forces.
  • Tribunals now have the power to order employers found to be in breach of equal pay law (under the Equality Act 2010 and after this date) to carry out equal pay audits. The audit will have to identify any differences in pay (between men and women), the reasons for these, as well as any reasons for the breach. The employer will also have to set out how they plan to avoid breaches in the future.
  • An expectant father or the partner of a pregnant woman (including spouses, civil partners or a person (of either sex) in a long-term relationship with her) will be entitled to take unpaid time off work to accompany the woman to up to two of her ante-natal appointments (up to a maximum of 6.5 hours per appointment). Employers are not entitled to ask for any evidence of the appointments. You can read more information about this on our blog post here.

 

Three further points of interest are:

 

  • The Court of Appeal has ruled that UK or EU employers do not have a duty to make reasonable adjustments for an employee’s need to care for a disabled dependent. The duty is owed only to disabled employees. The Department for Work and Pensions has recently released guidance to help businesses employ and accommodate disabled workers. You can read more about this on our blog here.
  • The Employment Appeal Tribunal has ruled that it is reasonable and enforceable for contracts to include a clause deducting a payment (equal to the salary for the period of notice not worked), when a highly skilled employee resigned.
  • In a recent case the European Court of Justice has ruled that, if a worker dies after a period of sickness (thereby resulting in their not being able to take their accrued holiday) payment in lieu must be paid to the deceased worker’s estate.
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Navigating troubled waters – how can you avoid risk from employee social media use?

You don’t need to go far to find 101 social media and HR consultants giving advice on social media use. But recently we came across five things that should be of interest to your business.  Whilst there’s no substitute for getting proper, professional HR advice on setting up a social media policy, as well as making provision within other practices, these may help you to navigate these tricky waters.

 

  • Using social media for recruitment may increase the chance of claims

 

If, as recent studies show, 64% of recruiters have rejected an applicant after viewing their social media profile, this opens the door for claims for discrimination (across a variety of forms, whether sexual orientation, religious belief etc). The Employment Practices Data Protection Code states that job candidates should be told what vetting and verification methods – including online research – have been used.  You may need to consider whether you are safely adhering to this, or not.

 

  • You may be liable for the things your employees post

 

The Equality Act 2010 makes it clear that businesses are liable for the acts of their employees if they are done “in the course of employment”. This means that your business may be liable for things they have said on social media, if they are connected to their work.  Policies and training should make it clear what standards of behaviour are expected in and out of work.

 

  • Keeping hold of LinkedIn contacts

 

This has been a long-running battle for businesses and recent cases bring welcome clarity.

 

In East England School CIC v Palmer, the fact that information about key contacts was widely available on LinkedIn and elsewhere on the internet did not affect the enforceability of the non-poaching restrictions in the employee’s contract of employment.

 

Similarly, in Hayes v Ions, the employee was encouraged to set up a LinkedIn account, by his employer (Hayes) and then migrated his list of LinkedIn contacts to himself on his departure.  The High Court ruled that Hayes had reasonable grounds for considering it had a case for breach of confidentiality in these circumstances.

 

Finally, in Whitmar Publications v Gamage, the employee was ordered by the High Court to hand over control of LinkedIn groups set up for her employer.  These make things increasingly clear in terms of businesses ensuring staff are aware that any LinkedIn connections made in the course of their business are their employer’s property.

 

  • You can protect against negative things being said about your business

 

It is often possible to dismiss employees fairly for making untruthful and derogatory remarks about your business. When assessing whether this is fair a tribunal will take into account the number of likely views of the offending content as well as any previous warnings you may have given.  You will also need to prove that you have taken reasonable steps to communicate expectations and provide training to staff.

 

  • Privacy doesn’t necessarily mean the dismissal was unfair

 

Employees may claim that their social media posting are private to them. Article 8 of the European Convention on Human Rights enshrines a right to privacy, and Article 10 a right to freedom of expression. Employment tribunals are compelled to apply unfair dismissal law consistently with these rights. However, recent cases have involved a tribunal taking a view, in connection with the above points raised, that businesses have a right to protect their reputation.

 

In the case of Preece v Wetherspoons Plc Ms Preece was dismissed for making negative comments about some of JD Wetherspoons’ customers.  The employment tribunal found that there was no right to privacy as any interference with freedom of expression was justified in order to protect Wetherspoons’ business.

 

In the recent case of Smith v Trafford Housing Trust, however, the employee’s anti-gay marriage Facebook comments were seen as quite separate from his work, even though they were in breach of a staff policy to refrain from expressing political and religious views, and had offended a work colleague.  As a result the dismissal was deemed unfair.

 

In conclusion… what can we learn?

  • There’s no substitute for a clear social media use policy, setting out what people can and can’t do and the likely outcome of certain action.
  • There’s also no substitute for clearly communicating your position concerning recruitment and social media.
  • When staff are involved in social media use as a part of their job you could consider supporting your social media policy with clear training and guidance on best practice – to empower as well as restrict them.
  • When in doubt, seek advice from an HR professional who can tailor all of this to your individual case.
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Redundancy does not require a reduction in work or headcount

A recent court case highlighted the fact that when making a redundancy the business does not necessarily need to have had a reduction in work or need a reduction in its number of employees.

Legislation states that employees must be selected for redundancy in a fair way, only taking into account their level of experience and capability to do the job. The employer must also have a legitimate reason for making the redundancy, which could be; the business is changing what it does, the business is doing things differently (using machinery etc.), or the business changing location or closing down. UK law also states that the employer must try to find suitable alternative employment within its organisation before resorting to redundancy measures.

The case that has recently brought redundancy laws into question involved a claimant whose job title was HR Administrator/ PA to the CEO. Following a reorganisation, the employer decided to create two new posts – HR advisor and PA to the CEO, to replace the claimant’s role. Both of these new roles required different skills to those possessed by the claimant and she was unsuccessful in her application for the PA role, therefore the decision was taken to make her redundant.

The claimant believed that she had been a victim of unfair dismissal and argued that the work she had previously carried out still needed to be done; therefore there was no reduction in the amount of work. However, the EAT dismissed the appeal stating that the claimant had misread the statutory definition of redundancy and that redundancy isn’t dependent upon a reduction in work load or headcount, but a reduction in the employer’s requirements for employees to do a specific type of work. This reduction can be actual or anticipated and still be grounds for fair redundancy dismissal.

In this case the tribunal proceedings concluded with the verdict that the decision to make the claimant redundant was fair even though there was not a reduction in the amount of work. In fact, the amount of work had increased warranting the creation of two separate roles; however, the claimant didn’t possess the required skills for either of the new roles and so was declared redundant.

For more information on the redundancy processes see the Government guidelines or contact Alison@enlightenhr.com.

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Father’s right to time off for antenatal appointments

Following changes to the law, from 1st October 2014 expectant fathers or the partners of pregnant women have the right to take unpaid time off work to attend antenatal appointments. The right extends to up to two antenatal appointments lasting no more than 6.5 hours each.

Under the new guidelines published by the Department for Business, Innovation & Skills, the term partner refers to a spouse or civil partner or a person (of either sex) who is in a long term relationship with the mother. The time limit for each appointment has been set at 6.5 hours to account for travel and waiting times. However, if more time is needed then this can be taken out of annual leave or extra time can be offered at the discretion of the employer or hirer of the father or partner.

The new rights extended to expectant fathers is part of the Government’s aim to achieve greater involvement of both of the child’s parents from the early stages of pregnancy, and encourages bonding with the child from both the mother and father.

In cases where the mother’s partner is not the child’s father, both the partner and the father have the right to take unpaid time off work to attend up to two antenatal appointments lasting no more than 6.5 hours each. Equally, if a man is an expectant father with two different women, he has the right to attend appointments with each of the women.

There is also no qualifying period for men to obtain the right to time off for antenatal appointments, it is a ‘day one’ right, with the exception of agency workers who are required to have been doing the same kind of job for the hirer for at least 12 weeks.

An employer or hirer is not entitled to ask for any evidence of the ante-natal appointments such as appointment cards, as they are the property of the mother and will be needed for attendance of the appointment. The employer can instead ask for a declaration stating the date and time of the appointment, confirming that the employee qualifies for unpaid time off through their relationship with the mother, and that the time being taken off is for the purpose of attending an antenatal appointment.

If an employee asks for time off to attend an appointment and their request is denied, they can file a complaint with the Employment Tribunal within a three month period of the request being denied. If the Tribunal upholds the complaint it must make a declaration and order the employer to pay compensation. The compensation will be calculated as twice the hourly rate of pay and will be paid for each hour that the employee would have taken off had their right been respected.

The law also protects employees or agency workers who exercise their statutory right from any detriment arising from doing so. This includes victimisation, being denied a promotion or job opportunity or anything else which will otherwise disadvantage them.

If you need any help or guidance with the expectant father’s right to take unpaid time off for antenatal appointments contact Alison@enlightenhr.com

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Employing people with disabilities

The Department for Work and Pensions has recently released guidance to help businesses employ and accommodate disabled workers. Updated on 24th July 2014 the new guidelines explain the advantages of employing disabled workers and offer suggestions on how you can comply with legislation in this area.

Under the Equality Act of 2010 a person who has a physical or mental impairment that has a substantial and long term effect on their ability to do normal daily activities is deemed to be disabled. It is against the law to treat somebody who has a disability differently either at work or during the recruitment process. Although discrimination can be indirect it is still illegal and employers should avoid not hiring or selecting an applicant or selecting a worker for redundancy based on their disability.

Nearly 7 million working age people in the UK are disabled or have a health condition that affects their ability to work. By encouraging job applications from people with disabilities, organisations are not only increasing the likelihood of getting a larger number of high quality applicants, but will also create a workforce that reflects the diversity of the community and customers they serve. Not only this, disabled workers can also bring skills and viewpoints to the workforce that otherwise may be missing, such as having a working knowledge of British Sign Language (BSL).

There are a number of ways you can make your recruitment process more accessible to disabled workers. These include;

  • Making your job adverts accessible to avoid discrimination. Use a font that is easy to read, only list skills that are vital to the role so you are not excluding any sections of the community. You should also provide the contact details of a person within your organisation that can offer more information about the role and discuss any reasonable adjustments that may need to be made.
  • Although it is illegal to ask about an applicant’s health until you have offered them a job, you should find out if any reasonable adjustments need to be made for them to attend interviews or perform the role if offered to them.
  • Using the two ticks symbol on your job advertisements will show that you encourage applications from disabled candidates.

Some employers are discouraged from employing workers with a disability as they fear the costs of making adjustments to accommodate them will be too high. However, often the costs are very low and there are even grants available to support employers in creating the right working environment for a disabled employee. Access to work is a scheme specifically designed to aid employers in employing disabled workers; you can view more information here.

Reasonable adjustments should be made throughout your recruitment process, as if at any time an applicant or employee feels they have not been made then they have a right to take you to a tribunal.

Reasonable adjustments could include;

  • Changing a disabled persons working pattern.
  • Providing training or mentoring for a disabled worker.
  • Altering your premises or equipment to aid a disabled worker.
  • Providing important information in accessible formats.
  • Allowing extra time for disabled applicants in tests or interviews

If an employee has become disabled since working for your business or there has been a change in an existing impairment or health condition that makes it harder for them to fulfil their role, the Jobcentre Plus offers advice on how you can retain disabled employees.

More information on how to cater for specific disabilities can be found in the guide from the Department for Work and Pensions found here.

If you would like any help or advice on employing disabled workers please contact enlightenHR alison@enlightenhr.com.

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Government Reforms to the Illegal Working Act

In order to strengthen and simplify the civil penalty scheme to prevent illegal working, the UK government has recently reformed the Illegal Working Act. The key changes to the Act are detailed below.

Changes introduced in May 2014

  • The maximum penalty for breaches of the Act now start at £15,000 per illegal worker for the first breach in a three year period and £20,000 per illegal worker for a second or subsequent breach within a three year period. The method for calculating penalty amounts has also been adapted but still operates on a sliding scale of amounts, which continues to take into account an employer’s compliance record and mitigating factors.
  • A new consideration framework has been put into place with changes to the acceptable mitigating factors. If successfully applied, mitigating factors can reduce a civil penalty amount or result in a warning notice instead. Each mitigating factor accepted will reduce the penalty amount by £5,000 and in some cases the penalty could be waived for a warning notice instead.
  • The fast payment reduction of a civil penalty has been increased from 20% to 30%. It has also become an option open to all cases where the first breach of the Illegal Working Act has occurred within a three year period, regardless of the number of illegal workers identified on one civil notice.
  • A new ‘No Action’ notice has been introduced and will be served to an employer who can successfully demonstrate that they have a statutory excuse for any illegal workers identified during a site visit to their premises. If this notice is served then the case for a breach of section 15 of the Act will be closed for the specified workers.
  • A new range of notices will be issued to more clearly administer the civil penalty scheme. The notices will explain the outcome of Home Office decisions and inform employers of any action they need to take and when this needs to be done.

Changes introduced in July 2014

To conform to the Immigration Act of 2014, further changes to the Illegal Working Act were made in July 2014 as detailed below.

  • To appeal against a civil penalty employers must now exercise their right to object before going to the appeal process. However, there is an exception in cases where a civil penalty has been increased due to an unsuccessful objection. In this instance the employer may raise a new objection or go straight to appeal. This change applies to all penalty notices issued on or after July 28th 2014.
  • It is now easier to enforce an unpaid civil penalty in the civil court. The secretary of state is now able to register debt instead of having to issue a substantive claim in civil court; this means that enforcement proceedings can be issued immediately. This change does not affect an employer’s right to object and appeal earlier in the process and applies only to claims issued on or before 28th July 2014.

Changes to Right to Work Checks

Employers should now be more vigilant when checking workers documents to establish that they have the right to work in the UK due to the updated policies described below.

  • The number of acceptable documents that prove a worker has the right to work in the UK has been reduced. Documents that have been removed from the list include travel documents, work permits and general Home Office letters. In addition to this, all documents containing an expiry date must now be current (except those showing that; the holder is a British citizen, a citizen of the UK and colonies that have the right of abode, a national of a European Economic Area (EEA) country or Switzerland, or if the worker has family members with a permanent residence in the UK.
  • The follow up checks for people with time limited rights to work is no longer every 12 months, but has been changes to the date when their permission to work in the UK expires or the dates shown on their documents expire. This applies only to employees whose employment commences after the introduction of the new regulations
  • Employers now have 28 days after the expiry date of a workers permission to work, to ascertain that the employee has submitted an application to the Home Office or has an appeal pending against their rights being revoked. During this time the employer must contact the Employer Checking Service to verify their workers right to work in the UK. If they receive positive confirmation then this can serve as a statutory excuse for a further 6 months, however if the check comes back negative then the employment of the worker must cease immediately.
  • International students with limited rights to work must show evidence to their employer of their academic term and vacation times for the duration of their studies. Also, as of July 2014, international students must also have an education sponsor in order to be permitted to work. If the student has ceased to study before their course is completed or they no longer have a sponsor, then they are no longer allowed to work in the UK.

 

For any help or advice with the recent changes to the Illegal Working Act contact alison@enlightenhr.com.

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When does giving a detailed reference become a breach of data protection?

Supplying a reference for an employee is a common aspect of being an employer but in light of a new High Court case, could this now be classed as a breach of data protection laws? Many businesses have a policy of only providing brief references for their employees to avoid any sort backlash, as seen recently in a case between a police officer and the force he was serving with.

The officer in question was facing allegations of gross misconduct and had applied for another job with a regulatory body, requiring a reference. The force supplied a brief, factual reference for him stating his employment dates, job title and place of work and the officer was offered the job. However, the Chief Constable of the police force decided that he was obligated to send an enhanced reference to the regulatory body, informing them of the police officer’s sickness absence and disciplinary record, including the misconduct charges he was facing.

The police officer was given notice of the Chief Constable’s intentions and issued claims against the force, claiming that it would be unlawful to provide a second, detailed reference. The High Court ruled that the Chief Constable was under no lawful obligation to send the second more detailed reference as the first reference was not misleading. The recipient of the first reference would assume that the force had a policy of only supplying brief references which also means that they are exempt from any responsibility or duty of care, as the information given in the reference was accurate.

The Chief Constable believed that he was under a public law duty to supply the regulatory body with a full reference because of the nature of the work. However, the court stated that this duty was outweighed by his data protection obligations and that the police officer’s absence record could not lawfully be disclosed as it was classed as sensitive personal data. The court also ruled that it would be unfair of the Chief Constable to disclose information relating to the misconduct allegations, because the police officer had resigned from the force and requested that the disciplinary proceedings were stopped before he learned of the Chief Constables intentions. This tipped the balance significantly in the police officer’s favour as he was unable to reverse his resignation and reinstate the proceedings to refute the allegations made against him.

It was also found unfair of the Chief Constable to send the second reference as he had not consulted with the police officer beforehand, allowing him to represent his case against the reference being given. With regards to the Chief Constable’s public law duty, it was overwritten by the fact that the police officer had a legitimate expectation that only the brief reference would be provided in line with the force’s policy and the assurances given to him. It would be unfair of the force to ignore this expectation even in light of the special circumstances of the case.

This case highlights the importance of exercising caution before departing from a policy of only providing a brief, factual reference for employees. It is also interesting to note that in line with this decision, an employer providing a brief reference cannot be found to have given a misleading representation of an employee to the new employer by failing to disclose details of disciplinary or attendance records. Employers should seek permission from the employee before disclosing this sensitive information in line with fairness and data protection laws.

enlightenHR always advises clients that giving a reference which merely confirms dates of employment, job title and place of work should be standard practice as this saves the business from any potential pitfalls – it is reassuring to see this advice upheld as sufficient by the High Court.

If you are not already a client and would like to this further, please call Alison at enlightenHR on 01803 668518 or email alison@enlightenhr.com

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Flexible working for all

As we wrote last month, there have been recent changes to flexible working legislation for all employers in the United Kingdom. These drastic changes have far reaching effects for all businesses and employers must make sure they are up to date with current requirements and procedures. The revised legislation now entitles all employees who have been employed for at least 26 weeks the right to request flexible working hours, not just parents and carers. In return, employers must be able to show that they have dealt with the request in a timely and reasonable manner.

New, detailed approaches to dealing with flexible working requests can be found in the ACAS Code and the Good Practice Guide. Following on from our article last month, we’ve set out, in more detail, the elements that remain the same and those that have changed.

Unchanged Elements

Employees still retain the right to make one request for flexible work per year which the employer can refuse based upon the eight business grounds. These are;

  • extra costs which will damage the business
  • the work can’t be reorganised among other staff
  • people can’t be recruited to do the work
  • flexible working will affect quality and performance
  • the business won’t be able to meet customer demand
  • there’s a lack of work to do during the proposed working times
  • the business is planning changes to the workforce

If the request results in an employment tribunal, it is likely that they will look at how the request was dealt with, not the employer’s grounds for refusal. The level of compensation awarded for an employer failing to comply still remains at 8 week’s pay, with a week’s pay capped at £464 per week. However, many employers now fear that they will face increased claims of discrimination which have unlimited compensation amounts.

Changes to Flexible Working Requests

The main areas that employers should consider updating in their flexible working policies are the procedures for dealing with claims and the timescales for processing each claim. New laws state that any request must be dealt with as soon as possible and within a three month timescale, including any appeal process. It is this time limit that employers must adhere to if they are to avoid tribunals.

In its revised code, ACAS advises employers to talk privately with an employee after receiving a written request for flexible working and then carefully consider the request before informing the employee of their decision in writing. ACAS also says that employees should have the option of being accompanied to any discussions regarding their flexible working request if they wish to.

Once an employer has made their decision, another discussion should take place with the employee to agree how and when the requested changes will be implemented or to allow an appeal. An appeal is not a requirement of the updated flexible working law; however it is the best way of showing that the request has been dealt with fairly and appropriately. If an appeal is requested following a refusal then this also needs to be done within the three month timescale. If an extension is needed, the employer should agree this extra time with the requesting employee first.

There are also changes to the way in which an employee should request flexible work. The employee’s application must;

  • State that the application has been made under statutory provisions.
  • Specify any changes that the employee is seeking and when they want these changes to take effect.
  • Explain what, if any, effect the employee thinks the changes will have upon the employer and how these could be dealt with.

The employee doesn’t have to explain why they are requesting these changes or give any reason for submitting their request. Following the submission of their written request, the employee must also attend both the initial meeting that is arranged to discuss this request and the second meeting after this. If the employee fails to attend without viable reason, the employer is able to treat the request as being withdrawn.

Again, ACAS advises employers to tread carefully and find out the exact reason for the employee missing both of these meetings before making a decision to treat the request as withdrawn. If the employer does decide to treat the flexible working request as withdrawn then they must notify the employee of this decision in writing.

Advice for best practice

  • Keep a paper trail of the entire flexible working request process and ensure that any changes to employment are recorded in writing.
  • Evaluate requests solely on the needs and purposes of the business, avoiding emotional or value based judgments.
  • Once a request has been agreed set out in writing exactly what is expected of the employee who will be working flexibly. For example, times that they should be in the workplace and how and when they should be contactable if working from outside the workplace.
  • Consider incorporating a trial period into the three month timescale of dealing with a request. This will allow both you as the employer and the employee to see the benefits and drawbacks of a flexible working request. It will also provide solid feedback for you to give to the employee if you do need to ultimately refuse their request.
  • Review existing procedures to ensure that they are fit for purpose in light of the changes to flexible working legislation and educate all parties that will be involved in dealing with requests about the changes.

With the changes allowing any employee to request flexible working, it is safe to assume that employers will receive a larger number of requests. Employers should work to create a comprehensive policy that is fair and equal but that also allows them to refuse requests when necessary.

A Flexible Working Policy if available for all enlightenHR clients via the members’ area of the website. All related policies (e.g. the Family Friendly Policy) have also been updated to reflect the changes.

If you are not already a client and would like to discuss what this change may mean for your business, please call Alison at enlightenHR on 01803 668518 or email alison@enlightenhr.com

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Tribunal claims are down say Ministry of Justice in latest statistics release

The Ministry of Justice has released its quarterly statistics, demonstrating a sustained reduction in the number of employment tribunal claims logged since the fees regime was introduced in 2013. The figures cover the first quarter of 2014 and show a 59% reduction in single claims. ‘Single claims’ are those made by a sole employee/worker (as opposed to claims where two or more people bring proceedings arising out of the same facts). In the same period in 2013 13,491 ‘single’ claims applications were received, versus only 5,619. In the previous quarter (end of 2013) this figure was even lower, showing a 64% drop on the same period in the previous year.

It is, of course, difficult to know the cause of this. Delays in processing applications could play a part but it is widely accepted that the introduction of mandatory fees for all those bringing claims will have played a significant part.

The introduction of fees was a controversial move and these statistics not only present a strong case for a Government review but add weight to the arguments being brought by groups such as UNISON.

UNISON, which is pursuing judicial review proceedings against the Government, will no doubt rely on the latest statistics to support its case for the fees regime to be stopped.  The group alleges that the fees regime breaches the EU principle of effectiveness (by making it excessively difficult to enforce employment rights) and is indirectly discriminatory. Last year the High Court rejected UNISON’s arguments, but the union is appealing that decision. One of the reasons that their case failed was because the court considered it too early in the process for them to adequately assess the impact of fees. It is likely, now statistics are available to support their argument, their appeal will proceed at pace. It is unlikely, however, that we will hear anything on this matter for at least another six months and, for now, fees stay in place for those bringing a claim before the Employment Tribunal. As a part of this the Government has committed to keeping the scheme under review and we await that towards the end of the year.

 

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Right to request flexible working – take note from 30th June

In summary

As of 30th June 2014 all employees with 26 weeks’ service will have the right to request flexible working arrangements.  The procedures that employers need to follow when dealing with requests are also being relaxed on that date.

Although the formal requirements will be drastically reduced employers will still be subject to two key requirements: to deal with all requests “in a reasonable manner” and deal with all applications (including processing any appeal) within a three month period.

ACAS has published a code of practice and associated guidance.

Eight steps to getting it right

 

  1. You still need your old policy – The law may be changing on 30th June 2014 but the old rules still apply to requests made before that date. These should be handled under the old procedures.
  2. Explain things properly – The main change taking place on 30th June is that employees no longer need to have parental responsibility for young children or be a carer to request flexible working. When you’re writing your new policy you should explain both this and the fact that employees still need to have at least 26 weeks’ service, to qualify.
  3. Remind people of how to request flexible working – There are a number of key details that employees need to include in their flexible working request and this is a good opportunity to remind them. Ideally you should provide a form to make their lives (and yours) easier.
  4. Decide on time limits for dealing with flexible working requests – As an employer you can choose your own time limits as long as the whole process is completed within three months. Whilst the new rules are more flexible than the old you may simply want to keep the old rules (which included timescales for meetings and responses) in place, so everything is clear. Flexible working: what’s staying the same?
  5. Consider whether to continue to allow employees to be accompanied at meetings – Whilst it is no longer a legal requirement, it’s often a good idea for employees to be accompanied at a meeting to discuss their flexible working request.   If you can, consider whether to continue to allow this – particularly in the case of those with special needs, disabilities or where English is not their first language.
  6. Consider whether to continue to offer employees an appeal stage – Whilst you do not technically have to offer an appeal stage to employees requesting flexible working, after 30th June 2014, it is advisable, if possible. An appeal stage for requests that are turned down will help to demonstrate, if needed, that you handled things in a “reasonable manner” which is required under the new legislation.
  7. Make sure managers know about the changes – Line managers are often the first port of call in flexible working requests. It’s, therefore, important that they know about these changes and how to respond to requests, after 30th June 2014. You might want to circulate this article or engage in some training for the team.
  8. Make sure employees know about their new rights – The majority of employees will not be aware of these changes and it’s, therefore, important that you communicate fully to avoid confusion.

 

For advice on this or to review your Flexible Working Policy you can contact Alison directly via www.enlightenhr.com.

For our members of course, we are as ever making things easy and a new policy and all the documentation will be available in the members’ area of enlightenHR’s website next week.

If you’re not a member but would like to know more, contact Alison on 07967 221595 or email alison@enlightenhr.com

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What you need to know about illegal working and discrimination

The government’s determination to crack down on illegal working in the UK, has been a regular story in the news.  An employee can be an illegal worker for a variety of reasons – a student on an expired visa or a person working on a visitor visa.  Many employers turn a blind eye.  But two significant developments have established this as a subject few employers can now afford to ignore.

The first thing you need to know…

As of May 2014 the government will be doubling the civil penalty for employing illegal workers from £10,000 to £20,000.  They are also increasing the maximum fine for employers paying below the minimum wage from £5000 to £20,000.

Although these steep increases may seem deterrent enough for many, employers should also consider that, in addition, their business details could be published by Immigration Enforcement, as a warning to others, and, if they have knowingly employed illegal workers, they could face a jail sentence of up to two years and unlimited fines.

The second thing you need to know…

Understanding how to ensure that you don’t fall into the trap of employing illegal workers, however, can seem impossible.  With the wealth of discrimination legislation, now in place, carrying out pre-employment checks is a more complicated process than simply asking direct questions.

To help with this, the government has published a code of practice (available here).  The Code of Practice for Employers: Avoiding unlawful discrimination while preventing illegal working will, once approved by the Secretary of State, have statutory force.  This means that it will be taken into account by courts and tribunals.

What does the Code say you should do?

The Code is a best practice guide for preventing discrimination whilst complying with an employer’s duty to carry out pre-employment immigration checks. Employers should read it now and identify ways to change their practices accordingly.  It is anticipated that it will be approved very shortly.  The code advises employers to:

  • Check whether the prospective worker has a right to work in the UK. Take copies of any relevant documents. If their right is only over a specific timeframe, make a note to repeat the process.
  • Produce “clear, written procedures for the recruitment and selection of all workers, based on equal and fair treatment for all applicants”.
  • Monitor the diversity of people applying for jobs with you (including disability, gender and national/ethnic origin).
  • Make sure that you are not treating an individual less favourably if they have a time-limited right to work in the UK. This means they should not be treated less fairly where employment, training, promotion, benefits, facilities, services or dismissal are concerned.
  • Not question a job applicant’s or worker’s immigration status unless it is necessary. This may be necessary if you need to determine whether their status impacts on the number of hours they can work each week or the type of work they can do.
  • Ensure that you do not make assumptions based on the applicant’s appearance etc
  • Do not penalise them if they are unable to produce documents to support their right to work in the UK. Instead you should give them reasonable time to produce the evidence, whist keeping the job open as long as possible.

Although this new Code is readily available, as with new ways of working, when twinned with tighter penalties for employers, the coming months will show us how these changes impact on employer practice.

Another key change is that the lists of approved documents that can be used for identification is changing – these are the List A and List B which enlightenHR includes in its standard offer letter. We are in the process of updating this within the members’ area so watch out for this change. If you’re not a member and would like a copy, or more general guidance on this matter, please contact alison@enlightenhr.com

 

 

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Can the duty to make reasonable adjustments extend to paying for an employee to have private psychiatric counselling?

In a nation that is working the hardest in Europe, one in six workers are working longer than 60 hours a week.  So, it stands to reason that there has been a significant increase in employees seeking psychiatric and stress-related treatment.  But can an employer be forced to pay for it?  Yes, on the facts of the next case.

A recent case concerns an employee, working on the reception of a veterinary practice.  She suffered from stress and severe depression.  Having taken medical advice she was referred for private psychiatric services and counselling.  The referral stated that the employer should pay for this.  When they refused to the receptionist resigned from her job and brought a tribunal claim against her former employer.  The tribunal upheld claims that the employer failed to make reasonable adjustments and that their employee was unfairly constructively dismissed.

The vets’ practice appealed – arguing that this falls outside of the scope of reasonable adjustments.  They said that it was unreasonable to require an employer to fund private medical treatment.

However, the Employment Appeals Tribunal dismissed this stating that, in their opinion, the issue was not the payment for private medical treatment in general, but, rather, payment for a specific form of support which would have enabled the Claimant to return to work.  As a result they felt that the tribunal had correctly found that the employer’s failure to pay for that treatment was a failure to make  reasonable adjustments.

So what does this mean for you?

The concept of ‘reasonable adjustment’ is an important part of Equality Act 2010.  In short, it is considered vital in enabling a disabled employee to retain their employment.  It is therefore important that employers fully understand their obligations and the scope of this concept, before making decisions like this.

In our work as employment and HR specialists we often talk to employers questioning the best way to support their employees.  As in so many matters, seeking expert advice is always key.  Based in the Devon area, we regularly recommend that our clients talk to Coralline Health.  Owners Jacqui Shaw and Pauline Neal set the business up to provide customers with the best healthcare money can buy.  And that includes corporate plans for employers.  Working with Western Provident Association (WPA), one of the UK’s fastest growing health insurers with a heritage of over 110 years, they provide an ethical, excellent value and quality of service that’s second to none.  Importantly, it would cover private psychiatric treatment, in the majority of cases.  For more information you can contact them on 01803 855210.

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Auto-enrolment is coming… what do you need to know?

For many business owners it can be a daily struggle, keeping on top of the changing requirements and regulations concerning their employees.  And the introduction of the new auto-enrolment pension scheme policy has added even more pressure.

What is auto-enrolment?

As of 1st October 2012 all employers are required to automatically enrol workers into a workplace pension scheme.  This is designed to combat the worry that few UK workers save enough for their retirement.  So why haven’t you done anything yet?  Don’t worry.  Auto-enrolment is being phased in over a six-year period, from 2012 to 2018, starting with the large employers.  For many smaller business this, only now, is becoming a reality.

To be considered ‘eligible’ for this scheme your employees must be between 21 and state pension age, earn the equivalent of £9,440 or more a year and work in the UK.  These ‘eligible jobholders’ MUST be entered into the scheme.  If someone is aged between 16 and 75 and earning between £5,668 and £9,439 then they must be told about their right to enter the scheme and given the option to join, should they wish.

In both of these cases the employer pays a percentage of what is called ‘qualifying earnings’.  These are the earnings the employee makes between £5,669 and £41,450.  In the first few years these seem set at 1% but could go up to 3% with time.  The employee would then match this.

If they are aged between 16 and 75 and earning less than £5,668 then they still need to given the option to join the scheme but they have to pay the contributions entirely.

Our five need to know points about auto-enrolment.

1. Staging – Each employer has been allocated a staging date.  This is the date by which you need to be compliant.  You can find out your staging date by clicking here.
2. Get moving – This is something you need to start looking at least six-twelve months before your staging date as there’ll be a mad panic at the end as hundreds of companies leave it to the last minute.
3. Take advice – Working out which pension scheme to put in place requires specialist knowledge.  Talk to your accountant, in the first instance, and, if they recommend it, an IFA.
4. Communication is key – Employees may think this is a good thing but be prepared for those that don’t.  Set out a clear communication plan for explaining what will be happening, and the implications, as early as possible.  You have a month from your staging date (or for new employees from their start date) within which to tell them that they’ve been auto-enrolled (if applicable).
5. Don’t ignore what happens next – Employers are responsible for continually assessing who is eligible.  You’re also responsible for assessing the financial and administrative impact of compliance, on your organisations.  Finally, as you might expect, you have a long list of administrative obligations (detailed here).  Don’t get caught out.

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Is it against the law to make a decision that could disadvantage an employee, because she’s pregnant or intends to take maternity leave?

Whilst it is common understanding that employers may not discriminate against employees on the grounds of pregnancy when it comes to recruitment, dismissal or redundancy, the situation concerning day-to-day decision-making can appear somewhat ‘greyer’.

To demonstrate a tribunal’s view on this area, we can look to a recent case in the Employment Appeals Tribunal. In this case they upheld a tribunal ruling that a police force was guilty of discriminating against a female dog handler, on grounds of her pregnancy, because they had required her to return her police dog during maternity leave.

After the police officer in question notified her employer that she was expecting her second child they informed her that she should return her police dog, during her absence, so it could be re-deployed where it was needed. The Claimant brought tribunal claims of, among other things, direct pregnancy and maternity discrimination and indirect sex discrimination.

The tribunal supported her claim of direct pregnancy and maternity discrimination, accepting the Claimant’s evidence that the dog’s reallocation could damage her career progression, as a dog handler, and deny her opportunities for overtime on her return from maternity leave.

While there is no denying that the Police’s need to keep the dog operational was a key factor in the decision made the fact that pregnancy was a significant and material influence on this decision meant that it was deemed discriminatory.

Although this is an unusual case, the police officer succeeded, not because the loss of the dog as a companion was considered discrimination in and of itself, but because of the impact it would have on her career and the fact that her pregnancy was the reason for this decision being made. This case is important in demonstrating the importance of considering ‘why’ decisions are being made, and their eventual effect on the employee, as well as the impact on your business.

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Flexible working and shared parental leave – dates confirmed

The Government has announced that the right to request flexible working will be extended to all employees from 30th June 2014. The right to shared parental leave will apply from April 2015.

*Flexible working for all… what does this mean?*

At the moment the right to request flexible working is only applicable to those with 26 weeks continuous employment at the date the application is made, with children under the age of 17 (or 18 if the child is disabled) and certain carers.

From 30th June 2014 the Government proposes to extend this right to request flexible working to all employees. Furthermore they will remove the current statutory procedure for considering requests meaning that employers will have a duty to consider all requests in a reasonable manner (although they will still have the flexibility to refuse requests on business
grounds).

Once agreed this flexible working will become a permanent change to the contract of employment. The request can cover hours of work, times of work and place of work and may include requests for different patterns of work. Employees do have the right to appeal, if necessary, against the outcome of this process and negotiate an agreement if the requested hours are not possible. Only one application can be made in a 12-month period.

On 29 April 2013, Acas Chief Executive, Anne Sharp and BIS Employment Relations Minister, Jo Swinson, headed up a panel of HR specialists to discuss the Government’s proposals to allow new parents to share a year’s leave, and the extension of the right to request flexible working to all employees.

The other speakers included Julia Tybura – Managing Director Zenon Consulting, Angela Gardner – Senior Manager in KPMG’s Diversity and Inclusion team and Liz Gardner Head of Policy at Working Families. You can watch a video of the event here:
https://www.youtube.com/watch?v=vczXA9wyNB0

*Shared parental leave… what does this mean?*

From April 2015, parents will be allowed to take and share a total of 52 weeks of leave from work, after having a baby or adopting. At the moment, mothers can hand some of their leave over to fathers, but only when the child is 20 weeks old. Under the new rules, a mother could choose to return to work more quickly and pass her unused allowance to the child’s father. They could even switch back if they chose. Fathers will still be entitled to their two weeks’ paternity leave straight after a child’s birth, in addition to this shared parental leave.

For more information on how this will work, we recommend the ACAS pages and also gov.uk

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April Awards update

Reflecting a Retail Prices Index (RPI) increase of 3.2% in the year to September 2013, on 6 April 2014 the limits to tribunal compensation will increase as follows:

Unfair dismissal compensatory award

· Current limit £74,200

· Limit from 6 April £76,574

Each week’s pay (used to calculate redundancy payments and other awards)

· Current limit £450

· Limit from 6 April £464

Basic award for certain unfair dismissals (trade union membership or activities, health and safety duties, pension scheme trustee duties or acting as an employee representative)

· Current limit £5,500

· Limit from 6 April £5,676

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Is it fair for an employer to dismiss an employee on the recommendation of an HR consultant?

Many small employers rely on external HR consultants to manage their disciplinary proceedings and they will be pleased to hear that a recent ruling confirmed that it is fair for an employer to dismiss an employee on the recommendation of an external HR consultant.

The following case gives a clear example of this in practice.

Case background

A company had nine employee. Its Managing Director discovered that one of these employees (a Senior Manager and subsequently the claimant) was engaging in sexual activity with another member of staff, on company premises, after hours.  He felt that this was inappropriate and called in an external HR consultant to conduct a disciplinary hearing, relating to this matter.  After the hearing, the HR consultant recommended that the senior manager be dismissed, and the Managing Director approved this.

However, the senior manager went on to appeal this dismissal.  The appeal was then heard by another external HR consultant and, after considering the case, she felt the original decision was correct and recommended that the Managing Director should dismiss the appeal; he agreed.

Not satisfied, the senior manager brought this to an Employment Tribunal.  They rejected his submission that the procedure used in his dismissal was flawed.  Their reasoning was as follows:

“We have considered whether a reasonable procedure had been followed by the respondent. We reject the submission of [the Claimant] that the procedure was flawed because [the managing director] was effectively the dismissing officer and the appeal officer.  In this case [the managing director] brought in consultants to deal with this matter as he was involved in the matters under investigation as he was a witness to the events and could not impartially deal with the resulting proceedings. The fact that a consultant was brought in to deal with such matters advises the owner of the business of the decision and seeks permission to implement it does no more than reflect the reality of the situation.  In an organisation of the size and administrative resources of the respondent company and given the senior position of [the Claimant] in the company, the actions taken to deal with the disciplinary proceedings against [the Claimant] were reasonable.”

However, although they felt that the process being followed was correct, the Employment Tribunal ruled that the Claimant’s dismissal was, in fact, unfair.  They felt that no reasonable employer would consider sexual activity (between two adults, out of hours in a deserted office) as Gross Misconduct.  As a result they did not feel that summary dismissal was justified.

The Managing Director was, understandably, unimpressed at this.  He had sought the professional opinion of two HR consultants and they had agreed with each other, whilst conducting proceedings correctly.  He took this to the Employment Appeals Tribunal.  They, however, ruled that this was a clear example of the Employment Tribunal substituting their own view for that of the employer.  They felt that this was inappropriate and therefore allowed the employer’s appeal against the finding of unfair dismissal. 

Conclusion – what this means for your business?

In summary, the process and advice from the HR consultants was found to be fair and the fact that the employer acted upon it was deemed to be entirely reasonable.

This sets an important precedent for smaller businesses who rely on HR consultants for advice in these sensitive matters.

If you would like advice about how the issues in this note apply to your situation, please contact Alison Benney

alison@enlightenhr.com

Tel: 01803 668518 

Mobile: 07967 221595

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When is it reasonable to dismiss an employee who has been absent from work due to ill-health for an extended period of time?

For many small and medium sized businesses sickness in the workplace is a significant drain on resources and productivity.  This case looks at the point at which it is considered reasonable to dismiss an employee following ill-health.  In this case, would a reasonable employer have waited longer before dismissing the employee – perhaps considering whether the employee is likely to return to work in the foreseeable future?

Case background:  The employee in this case had worked for the same company for 25 years.  Most recently however, they had been absent from work due to depression and anxiety and this had already lasted for over a year.  The employer had requested a medical report, which had shown that although the employee was currently unfit to work, he was making progress. The report suggested that he would be fit to return to work within one to three months.  However, having received this report, his employer dismissed him.  They did this because they said that the employee himself had indicated that he did not think he was getting any better.

The employee took the matter to an Employment Tribunal.  They upheld his complaint that he had been unfairly dismissed, stating that, in their view, no reasonable employer would have dismissed the employee after receiving that report, and no reasonable employer would have disregarded the advice contained in it. 

The employer took the matter to the Employment Appeal Tribunal.  This court felt that the matter was more complicated and needed further consideration.  They stated that the Employment Tribunal had placed too much weight on the employer’s failure to obtain further medical advice before dismissing the employee.  As a result they sent it back to the Employment Tribunal for reconsideration.  The Employment Appeal Tribunal issued the following statement:

“First, in a case where an employee has been absent from work for some time owing to sickness, it is essential to consider the question of whether the employer can be expected to wait longer.  Secondly, there is a need to consult the employee and take his views into account.  We would emphasise, however, that this is a factor that can operate both for and against dismissal.  If the employee states that he is anxious to return to work as soon as he can and hopes that he will be able to do so in the near future, that operates in his favour; if, on the other hand he states that he is no better and does not know when he can return to work, that is a significant factor operating against him.  Thirdly, there is a need to take steps to discover the employee’s medical condition and his likely prognosis, but this merely requires the obtaining of proper medical advice; it does not require the employer to pursue detailed medical examination; all that the employer requires to do is to ensure that the correct question is asked and answered”

Conclusion – what this means for your business?

The pathway that this case went down stressed the importance of balancing out the various elements at play, when addressing whether to dismiss someone on the grounds of capability.  Whilst length of service is not in and of itself conclusive reason why an employee should experience ‘special treatment’, tribunals may take this into account when weighing up how likely someone is to want to return to work as soon as they are able.  Other considerations for employers may well include whether a reasonable employer would wait longer to dismiss someone, perhaps taking into account outstanding entitlement to sick pay, availability of other – or temporary – staff, as well as the size of the business and its ability to ‘cope’.  They might well include demonstration of a meaningful consultation process with the employee, the balance of medical evidence  and the demonstration that reasonable steps have been taken to understand the prognosis.  Whilst an employer may not be required to have obtained a detailed, specialist medical report, they should be able to demonstrate that they have asked the right questions and had them answered.

 

If you would like advice about how the issues in this note apply to your situation, please contact Alison Benney.

 

Tel: 01803 668518  

Mobile: 07967221595

 

alison@enlightenhr.com

 

 

Warning – this bulletin is for information only and does not claim to be comprehensive or to provide legal or other advice. You should take legal advice before taking or refraining to take any action. No liability is accepted for loss that may arise from placing reliance on this bulletin.

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Major Changes in the Tribunal Procedure

Mark 29th July 2013 in your diaries for two major tribunal procedure changes this year. It is the date that the tribunal fees systems go live and a new procedure is put in place to help eliminate weak claims.   In a nutshell: Tribunal Fees From 29th July, claimants are required to pay a fee to lodge a claim at a tribunal. Should the matter proceed to a full hearing, there will be an additional fee.  How much are the fees?

  • Lower-value claims, e.g. unauthorised deduction of wages: Issue fee of £160 when the claim is lodged and an additional £230 if the claim proceeds to a full hearing.
  • More complex claims, e.g. unfair dismissal or discrimination: Issue fee of £250 and a hearing fee of £950.

Every claim must be presented with the necessary fee, or application for fee admission for claimants on a low income. Any claim presented without this will be rejected. Should this happen, a claimant does have the right to submit another form but only if their claim still has time left. In any case where the fee is underpaid, if it is paid within a certain timeframe the claim may still be accepted.  In a nutshell: Eliminating weak claims From 29th July, an initial sift must take place by a judge for all cases, once a claim has been presented. The sift will help weed out claims that the tribunal doesn’t have jurisdiction to consider and any responses that don’t have any ‘reasonable prospect of success’. How do they get eliminated? The judge will write to the claimant, or employer, in question and ask them to provide full written reasons why their claim should not rejected. The claim will be automatically be struck out if the judge does not receive a reply within a certain deadline. If they do get a response, the claim will be taken to a preliminary hearing for further consideration.  With these two major changes in place, employees will now have to think more carefully before deciding to file a claim. Employees need to consider the financial implications and be certain their case has a reasonable prospect of success before proceeding to present their claim.

 

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Summer Government Reforms

The Enterprise and Regulatory Reform Bill (ERRB) has now been set in stone. Many of the reforms will be coming in over the next month with others appearing later in the summer.    In a nutshell The Enterprise and Regulatory Reform Act 2013 is the product of the Government’s central reform package. The suggested implementation timetable for the summer covers whistle-blowing, EAT, qualifying period for unfair dismissal, statutory settlement agreements, compensatory awards and employment tribunal rules.   Implementations due 25th June 2013 Whistle-blowing

  • Need for a public interest element. A change that will not make much difference in practice, the law now states that, in the reasonable opinion of the employee, a disclosure is only protected if it is ‘in the public’s interest’.
  • Bad faith. A disclosure no longer has to have been made in good faith. Disclosures will still be protected if made to service the personal interests of the employee.

EAT Similar to previous rule changes, the EAT no longer requires two lay members to sit with the judge in the majority of cases.  Qualifying period for unfair dismissal If an unfair dismissal has been made for the main reason of the employee’s political affiliation or opinions, it is not necessary to have a period of service.  Implementations due Summer 2013  Statutory Settlement Agreements This summer the Government aims to bring in the use of settlement agreements. The reform states that in unfair dismissal claims, any settlement agreement discussions cannot be used as evidence. The purpose of this is to help both the employer and employee propose and negotiate exit packages without prejudice.  Compensatory Award Cap The compensatory award for unfair dismissals will now be capped at the lower end of the current statutory cap. At the moment this is £74,200 or the claimant’s annual net salary. Employment Tribunal Rules of Procedure This summer will see a number of changes made to the employment tribunal rules of procedure. A finalised date is yet to be announced but it is estimated to be the end of July.

  • Pre-hearing reviews and case management discussions will combine and be replaced by preliminary hearings.
  • An Employment Judge will review an initial sift stage to consider prospects and case management.
  • It will be easier to withdraw and dismiss claims.
  • There will be more flexible regimes put in place for holding hearings in private, making restricted reported and anonymity orders.
  • There will be a rule to permit Tribunals to limit oral witness evidence.
  • The £20,000 cap on costs awarded by Tribunals will be removed.
  • In order to supplement the new rules, a non-prescriptive guidance from the Presidents of Employment Tribunals in England and Wales and Scotland will be produced.

 

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enlightenHR – another placement

enlightenHR recently had the pleasure of welcoming another placement student from Germany. Maike Gieger joined us for a 6-week placement to gain experience of human resources in the UK and to improve her spoken English. Maike is currently nearing the end of an apprenticeship in Germany prior to going to university to study economics. Maike thoroughly enjoyed her placement, joining us at client meetings and networking events, helped with a range of projects during her placement and generally gained a good insight into working and living in the UK.

Alison Benney with Maike Gieger

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New ‘testimonials’ section

We now have some example written and video testimonials of our Customer’s experience, please visit http://79.170.40.162/enlightenhr.com/what-our-clients-say/testimonials

 

 

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Venus Awards Nominations

Alison Benney has been nominated for:

Venus Awards - Mother of the year

Venus Awards – Mother of the year

Venus Awards - Home-based business

Venus Awards – Home-based business

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New rules for employment tribunals that were planned to come into force next month have now been delayed until the summer.

What are the rules going to look like? There has not been an official publication of new rules but there have been suggestions that they will include:

  • Holding hearings in private will have a more flexible regime, as will making restricted reporting and anonymity orders.
  • It will be easier to withdraw and dismiss claims.
  • There will be an initial sift stage where an Employment Judge will review every case on paper to consider prospects and case management.
  • A new rule will permit Tribunals to limit oral evidence and submissions at hearings.
  • The £20,000 cap on costs assessed by a Tribunal will be removed.
  • “Preliminary hearings” will combine separate case management discussions and pre-hearing reviews.
  • The Presidents of Employment Tribunals in England and Wales and Scotland will give non-prescriptive guidance to supplement the new rules and to aid consistency of approach.

When will these rules and other employment law changes be implemented? The new rules are set to be published soon in order to allow time for familiarisation before they are implemented in the summer. They have been delayed from the original date of 6th April to avoid issuing a new set of rules that need to be amended later on. Other employment law changes have been mentioned in a published timeline as follows:

  • Spring 2013. Alongside Acas guidance, the collective redundancy consultation period will be reduced from 90 days to 45 days.
  • Summer 2013. The summer will see the introduction of new confidential settlement negotiations, as well as changes in Tribunal fees, changes to whistleblowing, portable online DBS checks and a new 12 months’ pay cap on compensatory awards for unfair dismissal. There will also be a review of the administrative paperwork associated with the Agency Worker Regulations.
  • Autumn 2013. The Government is aiming to introduce changes that will have resulted from its current TUPE reform consultation as well as introducing the new employee owner status.
  • 2014. Next year, changes will mean that an introduction of early Acas conciliation before a claim can be lodged at an Employment Tribunal alongside new employer Tribunal financial penalties.
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Working in Placement partnership

enlightenHR has wholeheartedly embraced the ‘The Training Partnership’ (www.ttpl-uk.com) which organises placements of varying lengths with local businesses; the students stay with host families in the area. Rhea Stelmaszyk (pictured below with Ian Smith of The Traing Partnership & Alison Benney) had a 3-week work placement with enlightenHR. Rhea comes from the northern area of Germany. She is undertaking an Administration Apprenticeship Scheme in Germany with a Marketing Agency and the placement in the UK is part of the Apprenticeship

Placements Partnership

Alison Benney commented “It has been great having Rhea with me, she has really enjoyed her time in the UK, gaining confidence in using her spoken English skills. During her time with enlightenHR Rhea has accompanied me to networking meetings, client visits and undertaken some significant project work. Rhea has been a very valuable asset and I only wish she was in the UK for longer. The Training Partnership do a great job in organising these placements, the calibre of the people is extremely high and they all benefit greatly from their time in the UK”.

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