News

Pension payments increase for employers and employees

Auto-enrolment pensions will further increase from 3% to 5% for employee contributions and from 2% to 3% for employers.

Although potentially this means a higher retirement income for employees, it could spell trouble for some as it may mean a decrease in take-home pay.

In the tax year 2017/2018 the auto-enrolment contribution rate was an equal 1% for the employer and 1% for the employee. This increased to 3% for the employee and 2% for the employer in the tax year 2018/2019. The next tax year will see the total auto enrolment contribution rates rocket to 8%.

The government has been planning this move for a while, as it claims rates needs to rise to meet the costs of a decent retirement.

Employees now have three options:

  • Opting down: Employers aren’t required to make a contribution but tax relief is still available
  • Pay the new higher rate: Increasing to 8% total next tax year
  • Opt-out: Choose not to pay into the pension

For example, an employee with a salary of £27,000 who agrees to pay the new rate next year, will see their pension contributions increase from £810 per year to £1350 per year, while the employer contribution increases from £540 to £810 per year.

Need some expert advice on auto enrolment pension contributions? Contact Alison via email for more information.

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New employment law legislation round-up

Some of the new proposed employment laws have already come into place. Here’s a quick round-up of a few of the laws that have already come into force and laws coming into effect in the near future.

New employment legislation

1st April 2018: National Minimum Wage rates updated

  • Apprentice rate: £3.70
  • National Living Wage for employees aged 25 and over: £7.83.
  • Standard Adult Rate for employees aged 21 to 24: £7.38.
  • Young Workers Rate for employees aged 16 to 17 who aren’t apprentices: £5.90.
  • Development Rate for employees aged between 18 and 20: £5.90.

6th April 2018: New rates for employment claims

  • Statutory redundancy award: £15,240.
  • Max UD compensatory award: £83,682.
  • A ‘week’s pay; is now £508.

25th May 2018: Data Protection

  • All areas of the General Data Protection Regulation (GDPR) has now come into effect.
  • The Data Protection Act 2018 replaces the Data Protection Act 1998.

Future employment legislation

6th April 2019: Itemised pay slips (click here for a full run down of the changes)

  • All workers and employees have the right to receive an itemised statement of pay.
  • Employers need to provide extra details on pay slips such as total hours worked for hourly rate employees, different types of work and different rates of pay.

April 2019 (exact date TBA): Parental Bereavement

  • If parliament approve the Parental Bereavement (Leave and Pay) Bill 2018/19, all bereaved parents have the right to take two weeks paid parental bereavement leave

For more expert advice on employment law, contact Alison via email for more information.

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Payslips to include itemised hours and rates

Not long ago, we updated you on important amendments to payslips that were to come into effect on 6 April 2018. Things are set to change again soon, however, so employers need to take note. An amendment to the Employment Rights Act 1996 means that every employee will be legally entitled to an itemised payslip, which will be enforceable before an employment tribunal. Currently, employers are only required to produce itemised payslips for ‘employees’, but will have to do so for ‘workers’ from the 6 April 2019. This won’t apply to any payments made in respect of a period of work which commences before this date.

Employees will have the right to view the total numbers of hours worked for their employer as either a single figure or individual figures for different kinds of work, however this doesn’t include wages or salary paid for work done before the date.

At the moment, payslips should include:

  • the gross amount of the wages or salary
  • the amounts of any variable or fixed deductions from that gross amount (and the purposes for which they are made)
  • the net amount of wages or salary payable; and
  • where different parts of the net amount are paid in different ways, the amount and method of payment of each part-payment.

However, where the amount of wages or salary the employee or worker receives varies by reference to time worked, the Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) Order 2018 will require their payslips to include information about the total number of hours worked by the employee or worker for which they are being paid, either as a single aggregate figure or separate figures for different types of work or different rates of pay. Again, this Order will come into force on 6 April 2019.

In short, the amendments require that hours are stated on the payslip for ‘time-paid’ workers, and itemised pay statements are required on the payslip for all workers.

Need some expert advice on the changes to payslips? Contact Alison via email for more information.

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Statutory payment rates confirmed for new tax year

The Social Security Benefits Up-rating Order 2018 has now been published in draft form, and points out a number of statutory payment rates that employers are going to need to consider. Most importantly, it states that:

  • The standard weekly rates of statutory adoption pay (SAP), statutory maternity pay (SMP), statutory paternity pay (SPP) and statutory shared parental pay (ShPP) are set to rise from £140.98 to £145.18 from 1 April 2018 (or 90% of the employee’s average weekly earnings if that is less than the statutory rate)
  • From 6 April 2018, the weekly rate of statutory sick pay (SSP) is set to rise from £89.35 to £92.05

As well as this, the Social Security (Contributions) (Rates, Limits and Thresholds Amendments and National Insurance Funds Payments) Regulations 2018 has also been published in draft form. It confirms that, from 6 April 2018, the lower earnings limit (LEL) will increase from £113 to £116 per week. Employees below the LEL do not qualify for SMP, SAP, SPP, ShPP and SSP.

For plain-English, expert advice on any of the above you can contact Alison here.

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CJEU judgment opens door to backdated claims for unpaid holiday

A recent decision by the CJEU has expanded the scope of the right to carry over holidays to situation where workers are stopped from taking their leave for reasons other than sickness absence. Here’s a look at the case, and why employers need to pay attention.

 The background

Between 1999 – 2012 Mr King Worked for Sash Windows as a salesperson on a self-employed basis, and was paid on a commission only basis. Because he was self-employed, his contact did not state if he should receive annual leave.

In 2009, Sash Windows offered Mr King an employment contract, but he decided to remain self-employed. Mr King took his full annual leave entitlement on some years, but he did not request all of it in a number of other years. The tribunals have accepted that Mr King would have taken more holiday if he had been paid for his leave.

When Mr King reached 65, Sash Windows terminated his contract. Subsequently, Mr King brought claims for age discrimination and unpaid holiday pay under the WTR 1998 to the employment tribunal. The employment tribunal accepted these claims, stating that both the company and Mr King had wrongly believed that he was self-employed when he was, in fact, a worker.

The case

Mr King claimed that he was entitled to holiday pay relating to:

  1. paid leave accrued but untaken during Mr King’s final (incomplete) leave year
  2. holiday which Mr King actually took during the previous 13 years with Sash Windows but was not paid
  3. leave which Mr King was entitled to by virtue of being a worker whilst working with Sash Windows but had not actually taken

With respect to his claim for discrimination and paid holidays, Mr King succeeded in the employment tribunal. The third point above, however, was appealed to the EAT and then the Court of Appeal, with the court of Appeal referring the case to the CJEU.

What this means for employers

The decision is particularly topical given the recent high-profile worker status cases involving Uber and Deliveroo and others. Whilst the CJEU’s decision is not binding on UK employers at this stage, businesses with individuals on contracts without paid holiday will need to keep an eye on this case’s outcome as it could result in further holiday pay being due.

We’ll keep you updated as the holiday pay law moves on. In the meantime, you can click here to contact Alison for more expert advice.

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Lessons to be learned from Uber and Deliveroo

Last November we updated you on the EAT’s ruling that Uber drivers should be classified as ‘workers’ and not self-employed. Now one of the most high-profile cases regarding the ‘gig economy,’ most employers will be familiar with the case. You can read the full judgement here.

Essentially, two Uber drivers brought a claim to the Employment Tribunal for unlawful deduction from wages, as well as a failure to provide paid leave. The drivers won the case, successfully persuading the Employment Tribunal that they were workers, and as such were protected under the Employment Rights Act 1996 (ERA). Uber, however, continued to argue that the drivers were in fact self-employed, and so the protections of the ERA did not apply to them.

Whilst Uber appealed this decision to the EAT (unsurprisingly, given the potential costs to Uber that the ruling could incur), the EAT upheld the Tribunal decision and found that the drivers are workers. This means that Uber drivers, as well as being entitled to the minimum wage and paid annual leave, can also raise claims for unlawful deduction of wages.

It’s a good idea to pause and consider the arguments that Uber put forward, which the EAT subsequently dismissed. Uber argued that:

  • It only provides the technology platform to facilitate a taxi service, rather than providing a taxi service itself;
  • The taxi service is, instead, provided by the driver and there is a contract between driver and passenger for each journey;
  • The drivers are self-employed;
  • Uber London Limited holds the required private hire vehicle operator licence.

But the EAT backed the Tribunal’s original decision, stating that this arrangement was indicative of worker status. It claimed that:

  • There is an interview process for potential Uber drivers and successful candidates must complete an induction;
  • A driver can be terminated in the case of serious misconduct or if their ratings drop;
  • Whilst drivers might be able to decide where they can work, they are required to undertake to the work personally for Uber, which indicated an employment relationship.

Whist the Tribunal held that Uber drivers are not obliged to turn on the Uber application or accept an assignment, a driver is working for Uber under a worker contract if:

  • Has the application turned on;
  • Is within their authorised territory for work;
  • Is able and willing to accept assignments.

This means that they should be afforded worker rights and protections in accordance with the ERA.

But it isn’t all bad news for the flexible workforce, or those that want one. It’s certainly not impossible for companies to enter into a genuine contract of self-employment, but employers must remember how this operates in practice. It doesn’t matter what label either party may put on their relationship, if the legal definition with ‘worker’ is met then the party providing the service is likely to benefit from worker rights.

The outcome of the Uber case is similar to that of Deliveroo, which received a judgement on their case last November. Deliveroo is another app-based service, with riders delivering takeaway food to customers from participating restaurants. Unlike the Uber case, however, Deliveroo riders were not found to be workers by the Central Arbitration Committee (the CAC) after the Independent Workers Union of Great Britain submitted an application.

The CAC made a decision on the basis of section 296 of TULRCA, whereas in the Uber case, the definition of a “worker” is set out in section 230 of the Employment Rights Act. The interpretation of the Employment Rights Act is outside the jurisdiction of the CAC, and so its comments would not be binding on an employment tribunal here. In the Deliveroo case, on there was evidence that riders took advantage of their right of substitution and sent another rider on a delivery in their place.

This goes to show that, whilst genuine self-employment is possible, it needs thought out, particularly in the current climate, if you’re to avoid a costly dispute.

For more expert HR advice, you can contact Alison here.

 

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Termination: make sure you follow what the contract says you need to do

In a previous article, we took a look at the importance of being honest when terminating an employee’s contract. It’s never going to be quick and easy, so it’s essential that employers comply with the contractual process of termination. The recent decision in Interserve Construction Ltd v Hitachi Zosen Inova AG shows just how important it is to understand and comply with this process for the termination of a construction contract.

The background

The case concerns the construction of an energy from waste plant in Hartlebury. In July 2015, the main EPC contractor sought to terminate its sub-contract with its subcontractor. The EPC contractor had issued a letter and made arrangements to remove them from site with immediate effect.

Whilst the sub-contractor could have justified immediate termination on a number of grounds, including those relied on by the EPC contractor, the contract stated that the EPC contractor:

“…may (at its absolute discretion) notify the Contractor of the default and if the Contractor fails to commence and diligently pursue the rectification of the default within a period of seven (7) Days… terminate the employment of the Contractor under the Contract.”

It was this that the sub-contractor used to argue that the contract hadn’t been terminated in the correct way, because the EPC contractor had not issued a notice and allowed a seven-day period for rectification of the default.

The case

 The EPC contractor tried to rely on reference to its “absolute discretion” under the clause, and argued that it was exercising this discretion in not allowing the seven days for rectification. But the court disagreed, holding that the notice and seven-day period for rectification was not optional but was a condition precedent. This meant that it had to be complied with prior to the EPC contractor having the right to terminate.

A termination event may have occurred, and it may have been in the EPC Contractor’s absolute discretion to terminate. However, the case demonstrates that the exercise of that discretion had been expressly limited by the terms of the contract, which means the necessary notice had to be given.

 Key points for employers

 The case is an important reminder that both parties must be clear on the rights surrounding termination, both when entering into a contract and when bringing one to an end.

When entering into contracts, make sure to:

  • Establish if there are any notice requirements and weather they are a condition precedent. Read the termination clauses carefully and look out for words such as ‘shall’, ‘subject to’ or ‘condition precedent’;
  • Check for any custom amendments to the timeframes for serving any necessary notices. The standard form can be amended to allow the notices to be given as early as possible.

When it comes to serving any notices, make sure to:

  • Comply with the form which the contract requires. This will normally mean giving the notice in writing, and should describe the circumstance relied on and reference the relevant contract provisions;
  • Serve the notices in the correct way. The contract might require it be served on a particular office or person, or in a specific way like recorded delivery.

If you skip out on the details, you could pay the price – even if there are genuine grounds for termination.

For more advice on the issue, you can contact Alison here.

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Autumn Budget 2017: Key points for employers

Although the Autumn Budget was delivered last year, there are a number a key points that will be coming into effect this April. Employers – keep an eye out!

The Autumn Budget 2017 has a number of measures that employers will be interested in, particularly relating to employment status consultation. There’s going to be a consultation to consider if and how the employment status tests for employment rights and tax can be made clearer. This follows The Taylor Review, published in July, which made a number of suggestions for reforming employment status and workers’ rights.

A joint report of the of the Work and Pensions and Business, Energy and Industrial Strategy (BEIS) Committees recommends legislation which would provide clarity on employment status, and put in place “the best” of the Taylor Review’s recommendations. This is likely to be part of the consultation when it’s launched.

Other key points of the budget include:

  • An increase of the national living wage (which applies to workers over 25) of 4.4% from £7.50 to £7.83 in April 2018. At the same time, there will also be an increase in the national minimum wage, from:
  • £7.05 to £7.38 per hour for 21 to 24 year olds
  • £5.60 to £5.90 per hour for 18 to 20 year olds
  • £4.05 to £4.20 per hour for 16 to 17 year olds
  • £3.50 to £3.70 per hour for apprentices.
  • A rise of the Personal allowance to £11,850 in April 2018, in accordance with the Conservative manifesto pledge to increase the personal allowance to £12,500 by 2020/21. The higher rate threshold will increase to £46,350, with the Government having pledged to increase this to £50,000 by 2020/21.
  • National Insurance Contributions (NICs) changes will be delayed by one year, in accordance with the Government’s previous announcement. Class 2 NICs and charging employers NICs on terminations payments over £30,000 will be abolished, coming into effect in April 2019.
  • Off-payroll working in the private sector consultation – following the Government’s decision in April 2017 to reform the off-payroll working rules (the IR35) for engagements in the public sector, the extension of reforms to the private sector has been considered as a next step. This would ensure that those who effectively work as employees are taxed as employees, even if they structure their work through a company. The Government has announced that there will be a consultation on this, drawing on experience of the public sector reforms and external research already commissioned by the Government. This research is due to be published in 2018.
  • From 6th April 2018, changes to the Save As You Earn scheme means that employees on maternity and parental leave will be able to take up to a 12 month pause (previously 6 months) from saving into their Save As You Earn employee share scheme.
  • From April 2018, there will be no benefit in kind charge on electricity that employers provide to charge employee’s electric vehicles.

For more information you can talk to Alison by clicking here.

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Upcoming changes to the pensions auto-enrolment regime

The government has decided that the earnings trigger will remain at £10,000 for the tax year 2018/19, following its annual review of the automatic enrolment earnings trigger. Whilst that is staying the same, other parts of the pensions auto-enrolment regime will change. Here’s a run-down of the key points:

  • The qualifying earnings band is set to increase. This sets minimum contribution levels for money purchase pension schemes. The minimum of the band also confirms who can opt in to a workplace pension scheme if they earn less than the earnings trigger. The earnings band will continue to be aligned with National Insurance contribution rates for tax year 2018/19.
  • This means that the lower limit of the qualifying earnings band will increase from £5,876 to £6,032 and the upper limit of the qualifying earnings band will increase from £45,000 to £46,350.
  • From 6 April 2018, employers may be required to increase the amount of their contributions into their auto-enrolment pension scheme. Workers will have to make up whatever shortfall remains of the new total minimum contribution.
  • Currently, the employer’s minimum contribution is 1%. This will increase to 2% on 6 April 2018 and then to 3% on 6 April 2019.
  • The worker’s minimum contribution is currently 1%. This will increase to 3% on 6 April 2018 and then to 5% on 6 April 2019.
  • The total minimum contribution is currently 2% but will increase to 5% on 6 April 2018 and then to 8% on 6 April 2019.

Additionally:

  • If the employer pays the same as the minimum total contribution then the worker will not need to pay any contributions, unless the scheme rules require a contribution.
  • If the employer contributes more than their required minimum amount but less than the total minimum amount, then the worker only needs to make up the shortfall between the total minimum and the employer contribution.
  • All auto-enrolment pension schemes with contribution rates that would be below the minimum amount after the rate increases must apply the higher rates to remain a qualifying scheme.

During 2017, the Government conducted a review of automatic enrolment to consider how they could encourage more people to save into a workplace pension. You can read it here.

The report sets out the government’s plans to lower the age at which employers are required to auto-enrol employees into a workplace pension scheme from age 22 to 18.

Fortunately for employers, the government intends that these changes will not take effect until the mid-2020s.

We’ll keep you updated as the changes roll out. In the meantime, you can contact Alison for expert HR advice here.

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EAT rules that Uber drivers are workers

The Employment Appeal Tribunal (EAT) has upheld a tribunal’s ruling that two Uber drivers were ‘workers’ and, therefore, entitled to worker benefits such as the National Minimum Wage and holiday pay.

The background

In UK law, ‘workers’ are entitled to a range of employment rights such as the national minimum wage, holiday pay and access to a pension scheme. Full employment rights, however, including statutory sick pay and protection against unfair dismissal, only apply to a category of workers normally referred to as ‘employees’.

For a non-employee to qualify as a ‘worker’ status there usually has to be a contract between the individual and the ‘employer,’ under which the individual undertakes to do work personally, and the ‘employer’ must not be a client or customer of a business operated by the individual.

How does this apply to Uber?

In this particular case, the EAT found that those conditions were satisfied. In particular, it found that the tribunal was entitled to reject the description of the relationship between Uber and the drivers in the written contractual documentation. Rather, the drivers were incorporated into Uber’s taxi business and subject to controls that pointed away from their working in business on their own account in a direct contractual relationship with the passenger each time they accepted a trip. The EAT confirmed that the tribunal had been entitled to consider the true agreement between the parties as not one in which Uber acted as the drivers’ agent.

But the EAT’s decision is unlikely to be the final one. It’s certain that Uber will look to bring a further appeal and it is likely that the case could go straight to the Supreme Court.

What can we learn from this?

The fact that the Uber drivers have won ‘worker’ status, however, does not mean that cases brought by others who work in the ‘gig economy’ will have the same success. In fact, the tribunal that originally heard the case said it did not doubt that Uber could have created a business model which did not involve the drivers having worker status. However, companies that rely on the ‘on demand’ freelance workforce will be keeping an eye on similar cases for any emerging trends that could impact their business model.

Particularly, these employers should review any possible risks of misclassifying the status of their workforce, including the affordability and practicability of paying statutory minimum wage, pension auto-enrolment and holiday pay entitlements.

Additionally, those businesses utilising IT platforms to exercise significant control over ‘on demand’ workers should be aware of the potential challenge in maintaining that such workers are genuinely self-employed, as opposed to one based on worker status (although it will always depend on the circumstances).

For more expert employment advice, you can contact Alison here.

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Does long-term sick leave mean termination of employment is unfair?

The UK Court of Appeal has considered if an employer was discriminating against its employee who had been on long term sick leave for more than 12 months by terminating her employment.

The background

In the case O’Brien v. Bolton St Catherine’s Academy, a teacher employed by the Respondent school was assaulted by a pupil in March 2011. Consequently, the teacher suffered serious stress and was on sick leave for over a year.

The teacher attempted to return to work in December 2011, but she was unsuccessful. Following this she had not returned to work, and in January 2013 the school terminated her employment.

The teacher lodged an internal appeal, which was heard in April 2013. The teacher produced a ‘fit for work’ note, as well as additional medical evidence, at this hearing. However, the panel upheld the dismissal on the grounds that the medical evidence was inconsistent, the prognosis was not good, and her return was uncertain. As a result, the teacher claimed against the school for disability discrimination.

The outcome

The UK Court of Appeal considered it unreasonable that the school had disregard the teacher’s  medical evidence at the internal appeal hearing. Because the school already had endured the teacher’s absence for 15 months, it was considered unreasonable for the school not to wait a few months longer, so that the school could obtain and assess its own medical evidence.

The court felt that the school should consider and provide evidence of the impact of the teacher’s prolonged absence (which it had not done to this point). Therefore, the court felt, the school’s dismissal of the teacher constituted disability discrimination. The court did acknowledge that this was a borderline ruling due to length of absence, and the nature of evidence of when the teacher would be fit to return to work.

What can we learn from this?

Although employers are not expected to wait forever for an employee to recover from illness, there are a number of steps they should take to prevent any action being considered as unfair.

  • Written records of any disruption caused to the business of the employers arising from the employee’s absence should be documented.
  • Employers should assess any medical evidence produced by the sick employee carefully, including any new evidence which may be available during the dismissal process (including any internal appeal hearing).
  • Additionally, employers should consider the nature of the illness, the likely length of continuing absence, and the need of the employers to have done the work which the employee was engaged to do.

For more expert employment advice, you can contact Alison here.

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The Supreme Court has ruled that employment tribunal fees are unlawful

The government suffered a heavy defeat on 26th July after the Supreme Court ruled that employment tribunal fees are unlawful and the government will now have to repay up to £32m to claimants, relating to claims dating back to April 2013.

Brought forward by the Unison union Lord Reed, the judgment said that the fees were unlawful because of their effects on access to justice. Introduced in 2013 and costing between £390 and £1200, the fees have been said to prevent access to justice for workers unable to fund their case.

“The making of the Fees Order was not a lawful exercise of those powers, because the prescribed fees interfere unjustifiably with the right of access to justice under both the common law and EU law, frustrate the operation of Parliamentary legislation granting employment rights, and discriminate unlawfully against women and other protected groups.”

While the fees were brought in by the government to reduce the number of malicious and weak cases, after 3 years there had been a 79% reduction in cases brought forward.

Discrimination cases cost more for claimants because of the complexity and time hearings took. The Supreme Court found this was indirectly discriminatory because a higher proportion of women would bring discrimination cases.

Unison general secretary Dave Prentis has said: “This is absolutely a tremendous victory, it’s probably the biggest victory of employment rights in this country.”

So what now?

In order to deal with this massive backlog of repayment and claims the Presidents of the Employment Tribunals have issued Case Management Orders.

The Order states that all cases and applications arising from the Unison case, or applications for reimbursement of fees, shall be made in accordance with administrative arrangements to be announced by the Ministry of Justice and HMCTS shortly… We wait to see what happens next!

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Trade Union Act 2016 – what changes to be aware of

The Trade Union Act was passed in May 2016 and regulations implementing central parts of the Act came into force on 1st March 2017. But what does it mean going forwards? Will it help prevent strikes similar to those we’ve seen over the past few months?

Why the Trade Union Act?

The Trade Union Act was brought into act to help address the perception that disruptive strikes were being called by unions despite low levels of support from members. Something that has been seen particularly in transport and other public services over the past few months.

As regulations, updated codes of practice and guidance are being rolled out, the areas is not standing still. Changes are on the way and there are some key ones to be aware of now that the Act is in force.

Information, notifications and expiry of the ballot mandate

New rules require unions to include more detailed information on the ballot paper sent to members. This information much include a summary of the dispute in enough detail that members can understand the issues and what action is planned. Unions must supply any affected employer with a copy and employers will be able to check the appropriate information is now included.

When the results of the ballot is released, unions must now inform all eligible voters. They must release information about the votes and individuals from a checklist provided.

In regards to industrial action, a union must give notice to an employer that fits an extended period of 14 days (or seven if agreed by union and employer). The authorisation for industrial action given by a ‘yes’ vote will now have an expiry date. After six months from the date of the ballot, unions will be required to re-ballot members in order to stage further action.

New turnout thresholds

One of the main aims of the new Trade Union Act, and one that will bring the biggest changes, are new measures to prevent unions from taking action when a small number of members have responded to the ballot. Now, in order for the ballot to be valid, at least 50% of all those entitled to vote must now do so for any resulting action of the ballot to be authorised.

Future developments

While regulations came into force on 1st March 2017, the 12-month transition period for changes to union political funds will have little practical effect until next year. From now, unions must include detailed information about political expenditure and the Government will have the ability to regulate union facility time.

There are still a lot of questions and changes on the horizon for the Trade Union Act and it may be a while before we see final decisions made in court.

For more information, visit http://79.170.40.162/enlightenhr.com or contact Alison Benney:

alison@enlightenhr.com

Tel: 01803 469466

Mobile: 07967221595

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The final Gender Pay Gap reporting guidance has been published

Earlier this month, on 6th April 2017, the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 came into force. This means that all large employers in the private and voluntary sectors with 250 or more employees must publish their first gender pay gap reports by no later than 4th April 2018.

What do employers need to report?

All employers must report on the median and mean gender pay gap figures for pay and bonuses, and the percentage proportion of men and women who received a bonus and the number of men and women in each quartile of their pay distribution. There are also similar provisions, contained the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017. These require large public sector employers in England with 250 or more employees to publish their gender pay gap data. In the public sector, the deadline of 30th March 2018 has been set for gender pay reports to be published.

What happens next?

To tie in with the beginning of Gender Pay Gap Reporting, Acas and the GEO have published a revised, final version of their joint non-statutory guidance on mandatory gender pay gap reporting covering both sets of regulations. This guidance is perfect for employers that are searching for practical advice on working out if the regulations apply to their business. It also offers guidance on how to carry out gender pay reporting, understanding key terms, how and where a business must publish the data and the penalties if businesses don’t comply. Lastly, and extremely importantly, it contains useful guidance on reducing the gender pay gap in businesses.

The Acas and GEO guidance can be found here. It’s important to note that throughout the guide, a legal requirement is indicated by the word “must” and the word “should” is what Acas considers to be good practice. They have also published two fact sheets and a template letter to help employers understand their obligations under the regulations.

In a nutshell

Gender Pay Gap Reporting is now in force and employers must report their figures according to provisions in the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017. To help employers ensure that they are reporting the correct information, Acas and the GEO have published guidance available for all businesses.

For more information, visit http://79.170.40.162/enlightenhr.com or contact Alison Benney:

alison@enlightenhr.com

Tel: 01803 469466

Mobile: 07967221595

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Five key employment law changes in April 2017

April is a busy month for employment law with several changes coming into force over the next few weeks. We’ve put together a summary of five of the main things to look out for this month and how they will affect employers.

Gender pay gap reporting rules come into force

The Gender Pay Gap guidance is a huge topic this month and is one that we will dedicate a separate blog to but in summary, every year large employers will have to report data about their gender pay gap, including any bonus payments. All details about the proportion of male and female employees in different pay quartiles and those who receive bonuses. For more information you can read our blog here. [Link to blog]

Apprenticeship levy is introduced

At the beginning of April the apprenticeship levy cam into force, meaning that employers with a paybill or more than £3 million will pay the levy to fund apprenticeship training. Employers in England that pay the levy will then be able to access the funding through a digital service, currently aiming to be in operation from May. Employers that do not pay the levy will also be able to access funding for apprenticeships and while the levy applies across the UK, different arrangements will exist of how apprenticeship funding will work in Scotland, Wales and Northern Ireland.

Immigration skills charge

Any employer that sponsors skilled workers under tier 2 of the immigration points-based system will have to pay a levy of £1,000 per certificate of sponsorship per year. This levy will come into force for each worker under tier 2, although there are some exemptions.

National minimum wage increases

This month the national minimum wage will increase, despite a relatively recent increase in October last year. It is happening now so that the timing of the annual increase in the national living wage rate for workers aged 25 or over will fit with the other national minimum wage rates. From this month the rate for workers aged 25 and over increases from £7.20 to £7.50.

Statutory family-related pay and sick pay rates increase

Also happening this month is an increase in the weekly rate of statutory maternity, paternity, adoption and shared parental pay. This is moving up to £140.98 for pay weeks commencing on or after 2nd April 2017. At this time the weekly rate of statutory sick pay will increase to £89.35 from 6th April 2017.

For more information, visit http://79.170.40.162/enlightenhr.com or contact Alison Benney:

alison@enlightenhr.com

Tel: 01803 469466

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How does the autumn statement affect HR?

The recent release of the Autumn Statement has affected people in all walks of life across the UK. While the main economic outlook is that debt and borrowing are on the rise, we’ve summarised the key take-away points for HR professionals and things to keep an eye out for over the coming year.

Salary Sacrifice

One of the most talked about topics in HR since the Autumn Statement has been salary sacrifice schemes. The tax and employer NIC advantages of salary sacrifice schemes will be removed from April 2017, except for arrangements relating to pensions, childcare, cycle to work schemes and ultra-low-emission cars. This means that benefits such as mobile phone contracts, health checks and gym memberships will lose their tax relief status. The chancellor had described the benefits as ‘unfair’ and said that the new rules will mean that ‘employers and employees will pay the same tax that everyone else does’.

Termination Payments

April 2018 will see changes to the tax regime for termination payments. Hammond explained in the Autumn Statement that there will be some simplification of the original proposals for taxation of payments in lieu of notice.

National Living Wage

From April 2017 the national living wage will increase from £7.20 to £7.50 per hour. This is not as high as the originally proposed £7.64 an hour and is still far below the voluntary living wage set at £8.45 per hour. The commission is satisfied that the increased costs can be mostly offset by higher prices or lower profits, but did show concerns for the social care sector and small businesses who will find it harder to make the adjustments and are already feeling the effect of government cuts.

Personal Allowance

It has been confirmed that the tax-free personal allowance will rise to £11,500 next year and it is still intended that by the end of this parliament, this will continue to rise to £12,500. Hammond said, “This will provide a massive boost to low- and middle-income earners.”. Further increases will be judged once current parliament has ended.

For more information, visit http://79.170.40.162/enlightenhr.com/or contact Alison Benney:

alison@enlightenhr.com

Tel: 01803 469466

Mobile: 07967221595

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Employment Law Legislations – December 2016

As 2016 comes to a close, December is a busy month for employment law changes. Over the coming few weeks, there are five main employment law legislations due to be implemented, we’ve summarised them below.

Upper age limit for jury service raised

From 1st December 2016, the upper age limit for people in England and Wales to sit as jurors will increased from 70 to 75. The new measure is contain in section 68 of the Criminal Justice and Courts Act 2015.

Immigration Act 2016: employers that employ illegal workers face business closure

After 1st December 2016, employers will face temporary or continued closure if they employ foreign workers illegally. It is commenced by the Immigration Act 2016 (Commencement No.2 and Transitional Provisions) Regulations 2016 (SI 2016/1037). A chief immigration officer can issue an employer with a closure notice that will prevent access to its premises (except for a person who lives there) for a maximum period of 48 hours, where he or she reasonably suspects that the employer is employing foreign workers illegally and the employer has previously committed certain specified offences of illegal working. Read more here.

Act of Sederunt (Fitness Assessment Tribunal Rules) 2016 comes into force

From 1st December 2016, the Act of Sederunt (Fitness Assessment Tribunal Rules) 2016 provides the process of investigating the fitness of a member of the Scottish tribunals. Read more here.

Scotland bans smoking in private cars carrying a person aged under 18

On 5th December 2016, The Smoking Prohibition (Children in Motor Vehicles) (Scotland) Act 2016 (Commencement) Regulations 2016 (SSI 2016/259) will introduce a ban on smoking in private cars carrying a person aged under 18, with the aim of protecting children from the health risks associated with exposure to second hand smoke in vehicles. The new law means that it is a criminal offence in Scotland for an adult to smoke in a private vehicle when there is also a person aged under 18 and the vehicle is in a public place.

The Income Tax (Pay As You Earn) (Amendment No.3) Regulations 2016 come into force

From 19th December 2016, the Income Tax (Pay As You Earn) (Amendment No.3 Regulations 2016 (SI 2016/1137) will amend the Income Tax (Pay As You Earn) Regulations 2003 (SI 2003/2682) to extend voluntary payrolling to enable employers to payroll non-cash vouchers and credit tokens provided to employees from 6th April 2017.

For more information, visit http://79.170.40.162/enlightenhr.com/or contact Alison Benney:

alison@enlightenhr.com

Tel: 01803 469466

Mobile: 07967221595

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How will the apprenticeship levy affect employers?

The apprenticeship levy is due to come into force in April 2017 and the Government hopes that by 2020 it will help create three million new apprentices. Employers are divided in opinion about the levy. While some believe that it is an area of increased importance, others are concerned about paying the levy when apprenticeships may not benefit their business.

How much do employers have to pay?

Businesses with an annual payroll of over £3 million have to pay the levy. The cost is 0.5% tax on the total pay bill, paid through Pay As You Earn. It is not just large employers who are affected by this tax. The £3 million cap could also apply to smaller employers who have, for example, a workforce of 100 people and an average salary of just over £30,000.

Who benefits from the apprenticeship levy?

Even employers who are not required to pay the apprenticeship levy can still access government support for apprenticeships. Those that have paid will have access to the funds they have paid in through an online portal called the Digital Apprenticeship Service. Their monthly contributions will receive a 10% top-up from the Government. Any training organised with this DAS must be provided through an accredited provider.

Note: Only employers in England will benefit from the DAS. The arrangements for Scotland, Wales and Northern Ireland will be separate and are still pending.

How can employers ensure that they benefit from the levy?

Many employers are looking at the levy as simply another tax and do not see the requirement for apprenticeships in their organisation. In order to benefit the most from the levy, employers should look at the structure of their organisation and identify any areas in which training is needed. It is possible that there may be learning and development needs within their business that could fall within the structure of an apprenticeship.

The key to benefiting from the levy is to be proactive and innovative and finding ways to use the funds for additional training within their current workforce as well as looking it as an opportunity to take on fresh apprentices.

In a nutshell

The new apprenticeship levy is going to cost businesses with an annual payroll of over £3 million whatever shape or size their organisation is in. Employers need to ensure that they have the financial capability to pay the levy and should now consider carrying out training that they were unable to do before but instead as an ‘apprenticeship’, rather than just see it as something for young starters.

For more information, visit http://79.170.40.162/enlightenhr.com/or contact Alison Benney:

alison@enlightenhr.com

Tel: 01803 469466

Mobile: 07967221595

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Was it discriminatory to dismiss a Christian for saying homosexuality is a sin?

Employees are protected from discrimination on the grounds of their sexuality and/or personal beliefs. But what happens when the two come into conflict? A recent employment tribunal was faced with the Mbuyi v Newpark Childcare (Shepherds Bush) Ltd (2015) case, which considered if it was discriminatory for an employer to dismiss a Christian employee for telling a colleague that homosexuality is a sin. A Christian nursery assistant, M, was dismissed for openly expressing beliefs against homosexuality when discussing the issue with a lesbian colleague.

But, crucially, M did not initiate this conversation and the expressing of her beliefs was not unwarranted. Rather, M’s lesbian colleague, LP, approached her and asked if M’s church would be accepting of LP and her civil partner. According to M, she admitted making comments like “God is not okay with what you do”, but went on to say: “if God is against [you] God is against me as well because we are all sinners.”

During the disciplinary hearing M claimed that she was not, in fact, homophobic but replied to LP in the way that she did because she cared for her and believed that “Jesus says come to me as you are.” Although M’s comments upset LP she did not commence with any formal complaints against M. But that wasn’t the end of it. Instead, it was M’s employer that invited M to a disciplinary hearing, and M was ultimately dismissed based on her own account of the conversation. No further investigation was done. In the dismissal letter the employer explained that the they felt M’s behavior towards LP was wholly inappropriate and concluded, without evidence, that M had deliberately targeted LP for harassment – referring to earlier comments made by M which had not been considered during M’s hearing.

The employment tribunal finally decided that M had been directly discriminated against on the grounds of her Christian belief. The tribunal similarly noted that LP had not been disciplined, despite being the one who initiated the conversation around religious belief – a conversation in contravention of the employer’s policies. The tribunal also upheld M’s indirect discrimination claim – the employer had placed M, and others sharing similar beliefs, at a disadvantage by their requirement to refrain from expressing adverse views of homosexuality.

Although providing services in a non-discriminatory way is absolutely essential, a total ban on discussing such matters was not a proportionate means of achieving that aim.

You can find a full transcript of the case here.

The tribunal’s approach in this case reminds us of an earlier High Court decision which also explored the tension between two employees with conflicting views. That case, Smith v Trafford Housing Trust (2012), concerned gay marriage. The High Court commented that whilst occasional differences of opinion amongst staff was a necessary price to be paid for diversity and freedom of speech within the workplace. But, importantly, this does not mean an employer can never discipline an employee for an inappropriate display of their beliefs. But the employer should always tread carefully – you shouldn’t be seen to be prioritizing one protected characteristic over another.

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National Minimum Wage: The Latest

The government’s campaign against employers who fail to pay the national minimum wage (NMW) continues. So what’s the latest?

Since 2011 the government has been publicly ‘naming and shaming’ employers who fail to pay their employees the NMW. The latest formal government press release, the way in which employers are named and shamed, was issued earlier this month – and over 90 employers were highlighted. The 92 employers owed, between them, a shocking £1,873,712 in NMW arrears.

Since the introduction of this scheme 490 employers have been publically shamed, which even includes some top high street retailers. On 1 April 2016, the government’s national living wage (NLW) became law. This means that employees aged 25 years or above, who aren’t in the first year of an apprenticeship, are now legally entitled to at least £7.20 an hour – which is an increase of 50p on the current NMW rate.

This NLW is being enforced in the same way as the NMW, and that means even more employers now risk being named and shamed. But employers aren’t just facing the risk of reputational damage anymore. Since 1 April 2016 the potential financial penalty that can be imposed on employers underpaying the NMW/NLW has been increased from 100% to 200% of the total underpaid wages – subject to a maximum of £20,000 per worker, which applies in relation to pay reference periods that began on or after that date. This means that if you don’t pay £500 to a work in breach of the new NMW obligations, you’ll now have to pay not only £500 in arrears to the worker but also a potential £1,000 penalty to the government.

A new factsheet produced by HMRC about the checks it uses to ensure employers are paying their employees the NMW, so you should have a read. You can find it here.

For more information, visit http://79.170.40.162/enlightenhr.com/or contact Alison Benney:

alison@enlightenhr.com

Tel: 01803 469466

Mobile: 07967221595

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No working on a Saturday for Religious Reasons

When it comes to working hours, most people like to have the weekend off. But what about those who can’t work on certain days for religious reasons? This issue takes centre stage in a recent case where a Jewish job applicant was awarded a massive £16,700 by the tribunal after they were rejected for refusing to work Saturdays. So what went wrong?

First off, let’s take a look at what happened. In  Fhima v Travel Jigsaw Ltd 2015 the applicant Ms Fhima (F) had applied for a job with Travel Jigsaw (TJ), a company that operates seven days per week. The company were looking for someone who could offer flexibility when it came to working hours, particularly someone who was able to work 7.00am-11.00pm Monday to Saturday with a day off during the week. But during the interview, F explained to TJ that she is a Jew who observes the Shabbat.

The Shabbat is a day of rest and spiritual refreshment observed within the Jewish faith. It begins at sunset on a Friday night and ends at nightfall on the following Saturday. Those who observe the Shabbat do not work during this period. F realised that this might be a problem, and offered to work every Sunday instead – which was feasible as TJ operates seven days per week.

But TJ didn’t seem impressed, and following her interview F received a rejection letter that stated: “After careful consideration we cannot offer you a position at this time. We are still looking for people who are flexible enough to work Saturdays.” After contacting TJ to challenge their decision, and their refusal to change it, F issued a tribunal case for indirect discrimination. This was because F felt that TJ’s Saturday working requirement put Jewish people who observe the Shabbat at a disadvantage.

TJ attempted to argue that they had been misled by F and that she hadn’t been clear about her Saturday availability. The tribunal, however, immediately shot them down. It finally ruled that F had been the subject of discrimination based on her religion and she was awarded £16,700 – which is a lot of money to pay someone who you’ve never employed.

But before we take a look at where TJ went wrong, you should remember that this a tribunal case – it doesn’t suddenly grant an employee of any faith the automatic right to refuse work on a day of religious observance.

So what did go wrong? There were two main errors in this case. Whilst an applicant or employee doesn’t automatically have to be granted the right to work a certain pattern due to religious observance, their request does need to be considered with fairness and an open mind. TJ didn’t give consideration to F’s compromise of working every Sunday. Rather, they just refused her request. TJ also had a problem with justifying their Saturday working policy in the first place – the rule didn’t apply to all staff and other options were clearly available.

So what can you do when faced with a similar situation? We suggest that if you have to reject a candidate, you don’t send anything other than an apology for their unsuccessful application. By connecting F’s religious observance to a lack of flexibility on her part, TJ dug itself a big hole. 

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European court rules that bosses can read workers’ private messages

The recent European Court of Human Rights ruling that states that an organisation that read a worker’s personal messages sent while he was at work was within its rights.

Can an employee be dismissed for sending private messages at work?

The engineer was dismissed for sending personal emails during his working hours and claimed that his employer had violated his right to correspondence and was in breach of the Constitution and Criminal Code by accessing his private messages. His complaint was dismissed on the grounds that his employer had complied with the relevant dismissal proceedings and that the complainant had previously been informed of company regulations.

He continued to appeal on the basis that his emails were protected by Article 8. Article 8 states that there is a right to respect private and family life, the home and correspondence. However the Court of Appeal decided that the employer had been reasonable.

Why do employers need to be careful?

Since the court ruling there has been an emphasis placed on ensuring that employers do not take this as an opportunity to regularly snoop on employees. Employers need to respect that employees may reply to work emails on a personal device outside of work hours so it should be considered fair that, on occasion, they may want to engage in personal conversations during the working day on a work device.

How can you prevent this happening at work?

The ruling has been an eye opener for employers and employees. Ensure that your employees are well aware of the company regulations regarding sending personal messages on a work device and do not encourage staff ‘snooping’ as a regular protocol. Make your staff aware that any messages sent on a work device are liable to be checked at any occasion if they employer deems fit.

For professional advice on this or any other HR and Employment Law matters, please contact Alison here.

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Does failure to follow the Acas Code make a dismissal necessarily unfair?

For a disciplinary decision to be considered fair it must follow the Acas code, which sets out the procedure that should be followed and the basic principles of fairness in a disciplinary situation.

Recently the EAT became involved with a case that involved an employee who had been dismissed. They felt that the dismissal was unfair and failed to follow proper procedure, including failing to follow the Acas code.

The employee, A, was employed as a prison pharmacist and received disciplinary action when she was accused of resisting and obstructing a project she was charged with. Alleged inappropriate and unprofessional behaviour led to her ultimate dismissal. But A stated that there were a number of procedural failings during this process. Initially, the manager at the hearing based their decision, in part, on information which had not been put to A. The decision was appealed by A and a full re-hearing by a panel of three took place. On this panel was a director, who was a mentor to an alleged victim of misconduct, and also a subordinate of the manager. It was this subordinate who made the initial decision to dismiss, which was upheld by the appeal panel. Various tribunal claims were brought by A, including race discrimination and unfair dismissal, and she also claimed that the make-up of the panel was not in line with the Acas code – which states that the decision should be made by more senior and impartial managers who were not involved in the original decision.

The tribunal dismissed these claims. They found that any flaws in the initial stage (for example using matters not put to A) had been remedied during appeal stage, and thus did not have any bearing on the final decision’s fairness.

A appealed to the EAT, but they similarly found that any flaws during the disciplinary stage had, in fact, been remedied and the make-up of the panel did not impact the fairness of the decision. Particularly, the EAT commented that it was impractical in most companies for senior managers and directors to be expected to have no dealings with witnesses prior to a disciplinary procedure. After all, senior employees often mentor subordinate members of staff and it would be unrealistic to not allow senior employees to use their experience during a disciplinary process. Without any other suggestion of bias, a hearing could not be classed as unfair on this basis alone. In this case the director in question only had links to one of the witnesses, and was not sitting in judgment on her own prior decision or involvement in the case. Additionally, the panel’s consultation of a senior pharmacy professional, and the fact that panel included two members senior to the original decision maker, meant that the issue of a junior member of staff sitting on the appeal panel was not a problem.

In the end the EAT found that the tribunal had given proper consideration to the make-up of the appeal panel when looking at fairness as a whole, and the appeal of A was dismissed on all grounds.

For more advice on this or other HR matters please contact Alison.

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Must you provide a stand-up workstation?

An employee has requested that you buy them a stand-up desk instead of a normal sit-down one. Are there any real benefits of stand-up desks, and are you legally required to fulfil this request?

Whilst stand-up desks have been around for quite some time, they’ve recently become trendier and it’s been claimed that there are numerous health benefits that come along with one. But while stand up desks may offer a healthier way of working, can an employee demand you purchase them one?

The ‘Health and Safety (Display Screen Equipment) Regulations 1992’ says no. There is no legal requirement for you to provide stand up desks under any regulations. As long as the workstation has enough legroom for the employee, enough space for completion of tasks, space that allows movement and postural change and a low-glare work surface then you needn’t worry.

But are stand-up workspaces nothing more than a useless fad? Perhaps not. We know how sedentary an office job can make us – office employees spend at least five hours and 41 minutes at their desks per day, according to Loughborough University. Combined with at least seven hours of sleep per night and an evening that’s unlikely to result in a trip to the gym and you’ve got the perfect recipe for a variety of health problems, especially obesity.

Stand up work spaces can help combat a number of health issues. On average, a worker will burn an extra 50 calories per hour standing up than they would working sat down. And it doesn’t just tackle obesity. Sitting down for long periods of time decreases the body’s ability to regulate glucose, which can lead to type 2 diabetes. In some cases it can even increase the risks of certain cancers and cardiovascular disease. Whilst it’s unlikely that having an office job is suddenly going to lead to a heart attack, it’s little things that add up over time that can really make a difference.

Research stand-up desks and consider the costs before making any decisions. Stand-up desks can range from anywhere between £200 and £1000, but some suppliers offer a lease policy that means desks can be rented from as little as £1 per day.

Alternatively, a portable posture stand costs around £50 and can be fitted on top of a normal desk, and can be used with both laptops and desktop computers. While this is not encouraged for long term use it may give you a good idea of how effective a stand up desk can be within the office, and can easily be transferred between different employees.

But, if at the end of the day you aren’t convinced then there’s no need to fret. Remember that you are not under any legal obligation to provide stand-up work spaces for employees. The only time you would need to start considering one would be under the express recommendation of a GP, and it’s unlikely that this is going to happen.

For more advice on this or other HR matters please contact Alison.

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Directors disqualified for breach of employment legislation

In the case of the wilful breach of employment legislation a director can be disqualified from taking part in promotion, formation or management of a company or receiving any company property. Two recent cases illustrate how a director can be stripped of their position.

  1. Disqualification for failure to pay national minimum wage:

Kenneth Nnaemeka Ikerunanwa, the sole director of two security companies (Widescope Security Services Ltd; Atlas Manned Guarding Security Ltd) was disqualified for not only failing to pay workers the national minimum wage, but also for submitting under-declared VAT returns to HMRC. Over a 15-month period he wilfully payed at least 15 employees below the national minimum wage, and was disqualified as a director by both HMRC and the Insolvency Service.

  1. Disqualification for employing illegal workers:

Mohammed Nadeem Shafi, a director of a restaurant and catering company (Gazal Sweets & Restaurant Ltd) employed five illegal workers and was subsequently disqualified from acting as a director for six years. The workers in question were not included on PAYE records, instead being paid in cash, and no right to work checks were conducted. Moreover, the company refused to pay the £15,000 fine it was required to pay for breaching the duty to conduct right to work document checks in regards to three of the workers. The disqualification of the director was secured by the Insolvency Service, and the company was put into Creditors Voluntary Liquidation.

For more advice on this or other HR matters please contact Alison.

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Staying free from slavery and trafficking

In October 2015 a new duty for UK businesses with an annual turnover of £36 million or more was implemented. Businesses will be obliged to publicly declare what steps they are taking to ensure that their operations and supply chains remain free of slavery and trafficking, a duty which comes from the Modern Slavery Act 2015 (the Act).

Modern slavery encompasses any kind of forced or compulsory labour as well as human trafficking, which can exist in both developed and developing countries – including the UK. A common example is where migrant workers borrow money to pay for their travel to a more developed country for work, with the intention of working on arrival to repay their debt. This often leads to ‘debt bondage’, where more costs like accommodation are added to their debt at a rate faster than they are able to pay off. Their passports are often confiscated and withheld as the worker’s attempt to repay their debt and escape their situation becomes more and more futile. The agriculture, food, hospitality and construction sectors are particularly vulnerable to this kind of exploitation.

Businesses in the UK may be satisfied that, at least in their own country, their operations remain ethical and slavery-free. But it’s not always as easy to guarantee this when it comes to operations elsewhere, especially overseas or with franchises, out-sourcing partners and joint-ventures. Modern slavery is a real risk in labour practices, and businesses are finally being urged to take action. Pressures include reputational, where ‘name and shame’ campaigns run by pressure groups urge for greater corporate transparency on human rights, and financial by increasing demands for CSR performance data as part of tendering processes.

From October, businesses providing goods or services will have to provide an annual statement regarding slavery and human trafficking. This includes partnerships and a body corporate, wherever incorporated, which carries on a business, or part of a business, in the UK (not just UK incorporated businesses). The statement must then be published prominently on the company’s website, after the approval of the board or equivalent management body, signed by a director or equivalent.

The Act sets out areas which “may” be included in the annual statement, and statutory guidance will be published this autumn reflecting these areas. The suggested areas are:

  • information about the organisation’s structure, its business and supply chains;
  • the business’s policies relating to modern slavery;
  • its due diligence processes in relation to slavery and trafficking in its business and supply chain;
  • Areas of the business that are particularly vulnerable to exploitation and slavery, and steps taken to reduce this risk;
  • its effectiveness in ensuring that modern slavery is not taking place, measured against appropriate performance indicators;
  • training available.

There appears to be a big divide in the business world when it comes to addressing modern slavery and other human rights issues. The challenge can at first seem overwhelming, due to the huge range of issues at stake. Whilst this may not be something the majority of UK businesses are obliged to consider, due to scale, the best practice suggests that this will be an area for increased consideration over the coming months and years.

For more information on this or other HR matters, please contact Alison.

 

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Checking emails during unexpected absences

Your employee is absent from work and you’re worried that there could be emails in their inbox that need answering. Is it okay to just open their inbox or should you get their permission first? The answer may surprise you.

Employees can be absent unexpectedly for any number of reasons, and this can cause a whole range of problems. It’s not often that absences can be predicted, or more importantly the length of time the employee will be out of work, and we know how quickly things like emails can pile up in the fast-paced world of business. It’s already hard enough covering their work, but what about urgent emails that might be sitting in their inbox? Is it wrong to check them?

While it’s the employer who provides and pays for the email services at work this doesn’t give them an automatic right to go through an employee’s emails. It’s important to remember the employee’s right to privacy – even when it comes to professional emails. But, fortunately, this isn’t the whole story.

Under the “Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000” or ‘LBPR’ businesses have the legal right to intercept, record and monitor business-related emails and messages without permission of the employee. But you need to be careful. On the occasion that you need to “check messages in an employee’s absence”, when it comes to e-mails, they “must appear in their unopened state to be business-related.” The LBPR does not give you unlimited access rights. It doesn’t matter if you have a policy that prohibits personal communications through work emails – if you deliberately open personal emails you’re breaching the employee’s right to privacy.

Despite the LBPR, employees must be informed of what workplace monitoring you do, to what extent it is done and why it could happen. The best way to do this is with an email and internet policy, which states that employees’ emails may need to be checked during periods of absence. It’s a good way of letting employees know that their emails might be read and covers you if personal emails are seen by mistake. If an employee doesn’t want personal messages being read then they shouldn’t be using a work email for personal communications.

It isn’t always this simple when it comes to voicemail messages – you can’t check the nature of these in advance so you could end up listening to something personal. You can deal with this in a similar way to emails with a telephone and voicemail policy.

Remember: you can check any work-related emails without the express permission of the employee, but you have to leave anything personal unopened. However, staff should know if workplace monitoring takes place and when and why it could happen. The best way to do this is with an email and internet policy and a clearly worded term in the Contract of Employment.

For advice on this or any other HR issue please contact Alison.

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The price for employers of last minute holidays

Taking last minute holidays has become increasingly appealing – hotels and flights don’t want empty seats or rooms, meaning they’re willing to offer them at low prices, particularly now we’re out of season. But the nature of these holidays often puts employers in an awkward position, especially when employees feel they can grab the chance of a cheap holiday at short notice. The main cause of this seems to be a confusion surrounding the legalities of annual leave and the amount of notice the employee needs to give.

Thankfully the law is clear about this. It states that the employee has an obligation to give notice double the length of the holiday requested – for example, if an employee wishes to take a holiday of two weeks then at least four weeks of notice needs to be given.

Staying in control of the situation, as well as your business, is of prime importance here. As ever, communication is key. You must make sure your employees understand your company’s policy regarding annual leave – for example when the holiday year runs from and to, and policies regarding the payment of unused holiday entitlement. Specifically you should be clear on your stance regarding last minute holidays. Setting clear rules keeps your business running smoothly and prevents the significant, costly problems that are caused by being short staffed and underprepared.

It’s simple:

  1. Employees must give you as much notice as possible.
  2. All requests must be approved in advance.
  3. Employees cannot book holidays until express authorisation has been given.

Whilst last minute deals might be missed this way, both you and your employees need to remember that your business is the priority, over holidays. If the annual leave request doesn’t totally suit your plans then you must feel comfortable rejecting holiday leave.

Top tip

It is good to have an annual leave rejection letter ready for this, so you are prepared when it happens.

The letter should simply acknowledge that you understand that the employee wishes to take time off, and then explain why this isn’t possible – for example because of staffing issues, an excess of holiday days already taken, business demands during the period or a lack of proper notice.

Annual leave policies might not seem a top priority when it comes to running your business, but issues like this are crucial to staying in the driver’s seat and making sure your company stays on track. Encouraging your employees to least “pencil in” holiday dates at or near the beginning of the holiday year helps everyone’s planning – being the employee who is left with no choice as to dates because colleagues got their first is never a happy place to be.

For advice on this or any other HR issue please contact Alison.

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Navigating the choppy waters of job adverts and flexible working

Research has showed that only six per cent of job applications advertise the possibility of flexible working hours – but does this mean that 94% of employers are falling short of expectations?

Perhaps not – there are many reasons why it could be sensible to keep quiet about flexibility when it comes to advertising to potential employees.

 

The facts

In June 2014 the right to request flexible working hours was extended to all, rather than just for workers who are parents and carers. A year later, In June 2015, Timewise conducted a survey of 3.5 million job adverts. It showed that:

  • In the £20,000-£29,999 p.a. bracket, six per cent of jobs advertised flexibility.
  • In the £40,000-£49,000 p.a. bracket, three per cent of jobs mentioned this.
  • In the £100,000-£199,999 p.a. bracket, only two per cent of jobs offered this.

Employers who have not mentioned flexible working hours in their adverts have received widespread criticism. But perhaps it isn’t as simple as that. Perhaps not advertising working flexibility could stand to protect your business in the long run.

 

What should you do?

Whilst receiving a request to work flexibly might be increasingly common, as an employer, you have no legal obligation to offer this and can assess applications on a case-by-case basis. Flexible working hours is not a statutory right – the employee can only make one application in a 12 month period and only after 26 weeks of continuous work, not on day one. 

Remember, you have the right to reject requests for flexible working hours, especially on the eight acceptable grounds for refusal:

  • the burden of additional costs
  • the detrimental effect it would have on the company’s ability to meet customer demand
  • the company’s inability to re-organise work amongst existing staff
  • the company’s inability to recruit additional staff
  • the detrimental impact it would have on quality
  • the detrimental impact it would have on performance
  • the insufficiency of work available during the period when you propose to work
  • the company’s planned structural changes

Unless you know for certain that offering flexibility won’t cause any problems – and not many jobs are suited for this – then it’s best to hold back. Advertising this immediately could cause problems down the line.

And don’t forget – there is nothing wrong with keeping quiet – you aren’t going to discourage any potential applicants from applying and you could end up protecting your business.

For advice on this or any HR matters, please contact Alison.

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Can conduct vary a contract?

You can be forgiven for thinking that a signed contract is the end of it, where agreeing terms is concerned. But conduct (and workplace customs and practices) can have an impact on whether things ultimately change. How can you know whether your employees’ conduct has actually varied their contracts?

Let’s start with an example. Say your business’ contracted working hours are 8:45am to 5:00pm but an employee needs to leave early, perhaps to catch an earlier train in order to get home. To make up for lost time they turn up to work early – they now work from 8:30am to 4:45pm. Is this going to vary the contract over time?

If you’ve already contractually agreed the working hours and have not, up until this point, said anything about the slight change of time then their conduct won’t vary the contract. You can still hold the employee to their contracted working hours going forward.

But, if you have accepted their new arrangement – even if just verbally – that counts as a variation of the contract and you must stick to it.

To be clear, it’s best to formalise the arrangement. It will avoid doubt later and stop other employees from thinking they can just come and go as it suits them, even if just by a few minutes.

For advice on this or any other HR matter please contact Alison.

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