How Do You Handle Unauthorised Absence from Work?

Posted on September 7, 2016 by Sue Ferguson

What do you do when one of your members of staff keeping missing work for no apparent reason, or doesn’t come back when you expected them to after their holiday? This is known as unauthorised absence and needs to be handled quickly and efficiently.

The first thing to do is find out why someone has been missing work. Is it unusual or do they keep missing work? Next you need to get in touch with them and follow a procedure. This short video will tell you more about this.

We can help you put a procedure in place for handling these issues and can provide you with a template letter to send to staff who have been absent without your authorization. Just call us 0118 940 3032 or email sueferguson@optionshr.co.uk for some confidential advice.

How Do You Handle Short Term Staff Sickness?

Posted on August 10, 2016 by Sue Ferguson

Do you have a member of staff who always seems to be off sick, or who doesn’t turn up at work as often as they should do? What’s the best way to handle this?

The first thing you need to do is find out exactly how many days your employee has been off work due to illness and why. What next? Watch this video to find out how to meet to with your employee and what you expect from them next.

If you have any specific questions about handling short term sickness issues with your team, call us 0118 940 3032 or email sueferguson@optionshr.co.uk for some confidential advice.

How Do You Deal with Poor Staff Performance?

Posted on July 27, 2016 by Sue Ferguson

What do you do when you first think that one of your members of staff isn’t doing as well as you would like them to?

Whatever you do, don’t ignore it and just hope that the situation will improve!

For some tips on how to deal with the early stages of poor performance, watch this short video.

If you still have any questions about how to help your staff to perform better, or you have a more difficult situation to deal with, call us 0118 940 3032 or email sueferguson@optionshr.co.uk for some confidential advice.

Reporting the Gender Pay and Gender Bonus Gap Data

Posted on May 12, 2016 by Sue Ferguson

The draft Equality Act 2010 (Gender Pay Gap Information) Regulations 2016 require employers, with more than 250 employees, to publish their first gender pay gap report by 30 April 2018, giving you up to 12 months from the pay period covered by the report to do this. The report must appear on your website, in English, in a manner that is accessible to all your employees and to the public. Once published it must remain there for at least three years.

Employers will have to publish the results, but not the raw data on which the calculations are based, for each of the benchmarks set out below:

The mean gender pay gap
The median gender pay gap
The mean bonus pay gap
The proportion of men and women receiving a bonus payment and
The number of men and women in each of the four pay bands.

Your report will have to include a written statement confirming that the information is accurate. This must be signed by a director, partner or member of your organisation’s governing body.

As an employer you will also be expected to upload the information to a government website, where the intention is to create a publicly available league table or database.

There will be no legal obligation on you to publish any form of commentary on the figures or to set out any actions that it may be taking to address the gender pay gap. However, ministers have made clear that the Government will strongly encourage you to do so.

You should be particularly aware of the potential damage to your reputation, especially among potential future employees, of failing to set the data in context or to provide an explanation. Where you can report a gender pay gap that is narrower than that generally seen in the wider economy, and/or within its industry, this could enhance your organisation in the eyes of both job applicants and existing employees. However, you cannot assume that a job applicant will automatically be aware that your gender pay gap is better than average. This needs to be spelled out.

If your company’s gender pay gap is wider that the average, additional explanation will help to protect your reputation. Is the gap wide because of the industry in which you operate or the types of roles that exist within it? For example, women make up only 14.4% of all employees in science and technology occupations and represented just 15% of undergraduate entrants to engineering and technology courses in 2014/15. Employers with a large number of well-paid roles in these areas may struggle to recruit women to them.

Additionally, you may wish to use the opportunity to set out what you are doing to ensure that you recruit, develop, reward and promote women as well as men. This is particularly important if there are few mitigation factors to explain a wide pay gap within your organisation.

Need help with writing your first gender pay gap report? Get in touch to find out how we can help by contacting us on 0118 940 3032 or emailing sueferguson@optionshr.co.uk.

How Do You Deal With Redundancies?

Posted on March 16, 2016 by Sue Ferguson

Making people redundant is never an easy thing to do. However, sometimes, for the future of your business, you may find yourself facing this situation. How do you deal with it? What are you required to do by law? What’s the best way to look after your staff and make the process easier for them?

All these questions will be answered in this blog, so do read on.

What do we mean by ‘redundancy’? It is a potentially fair reason for dismissing an employee, but should only be caused by the closure of a business, the closure of a particular workplace, or a diminished need for employees to carry out work of a particular kind.

Carrying out a proper selection process is crucial if unfair dismissals are to be avoided. When you’re selecting employees for redundancy, you must ensure that the “pool” for selection is identified correctly and that the selection criteria used are objective and fairly applied. If your company is closing down the whole business or a particular place of work, the issue of the “pool” for selection will not usually arise since all the employees in that place will potentially be redundant. Where this is not the case, you should consider the following selection criteria:

It is good practice for more than one person to be involved in the selection process, to reduce the risk of perceived bias or discrimination. It is sensible to have two people, both of whom know the individual employees concerned, carry out the assessment.

As an employer you are not under a legal obligation to seek volunteers for redundancy, but it is good practice to do so. Enhanced redundancy payments may be used as an incentive for employees to volunteer for redundancy. Early retirement can also be an acceptable alternative to redundancy for both employees and trade unions.

Individual consultation with employees is essential. If you do not carry out such consultation, any subsequent dismissal will almost certainly be unfair. Start with an initial meeting with staff, to announce the likelihood that redundancies will be necessary. You will then need to carry out individual meetings with the employees selected for redundancy. Finally you will need to hold individual meetings at which your employees’ selection for redundancy is confirmed, before writing to those affected.

Making people redundant, for whatever reason, is not easy. There are many pitfalls to be avoided. As it is such a big subject, we have put together a fuller guide on how best to deal with redundancies. You can download it for free from our website by clicking here. If you have any immediate questions concerning your business and redundancies, please click here to email me or call me on 0118 940 3032.

How Do You Handle Unauthorised Absence?

Posted on February 10, 2016 by Sue Ferguson

Occasionally you might find yourself faced with a situation where one of your employees is absent from work without explanation and without permission. They simply fail to turn up for work. The absence might be for just a day or two or – in the worst case – you might never see them again. What can you do about it? How should you handle unauthorised absence?

Contacting your Employee

The starting point is for you to try to make contact with you employee by telephone on the first day of unauthorised absence, to find out why they have failed to turn up for work. Logs of all attempts at contact should be kept, whether these are messages left on an answer phone or with relatives or flat mates, or whether there has simply been no answer when the employee’s telephone number is rung. Remember to call landlines as well as mobile numbers, if you have them.

If your attempts to contact your employee are unsuccessful, it is recommended that you contact the employee’s stated emergency contacts – usually parents or siblings, spouse/civil partner or partner.

If nothing has been heard from the employee by the second day of unauthorised absence, you should step up your attempts at contact, by writing to advise the employee that they have failed to attend work on the relevant dates and have not provided any reason for non-attendance. You should cite the previous attempts to contact the employee in your letter, and ask the employee to make contact with you by a set date, to confirm their position. Allowing a couple of days for contact should be sufficient. The employee should also be advised that unauthorised absence without good cause is a serious disciplinary offence, which may, depending on the circumstances, amount to potential gross misconduct.

Assumed Resignations

Some employers state in their letter that the employee’s conduct in failing to attend work implies that they intend to, or have, resigned; if they fail to make contact by the stated deadline, it can be assumed that this is the case and appropriate action can be taken. Do note, however, that for a resignation to be implied by conduct, at the very least you must make enquiries and warn your employee of your intentions.

It is only in exceptional circumstances that resignation will be the proper inference to draw from an employee’s conduct. In most cases, the contract of employment does not end until you accept the employee’s breach of contract in failing to attend work, by actually dismissing them. This is because tribunals will generally hold that the withdrawal of labour and the failure to contact the employer are not of themselves enough for a resignation. Rather, the employee must have actually communicated an intention to resign to the employer.

Given that it is likely that a tribunal will hold that an assumed resignation is in fact a dismissal, as the employer, you should incorporate your normal disciplinary procedure into this process. This will involve writing to the employee to invite them to a meeting to discuss the unauthorised absence, setting out the possible consequences of this behaviour. Of course, if the employee has failed to reply to the unauthorised absence letters, it is highly likely that they will fail to turn up for the disciplinary meeting and will not provide any reason as to why they could not attend. This means that the meeting will probably go ahead in the employee’s absence and that they will then be notified of the outcome in writing and given a right of appeal.

Disciplinary Action

In many cases, you’ll be able to make contact with your employee and they return to work. When this happens, you should promptly investigate and ask the employee for a proper explanation at a return to work interview. If there are no acceptable reasons for the absence, the matter should be treated as a conduct issue and dealt with in accordance with your disciplinary procedure. Even if the employee says that they were sick, they will need to explain why no contact was made with you, as required by your company sickness absence reporting procedure. An investigation might well turn up the fact that the sickness absence was not genuine, and there may still be a disciplinary case to answer.

Unauthorised leave can lead to a fair dismissal, especially where a prior warning makes the consequences of the absence quite clear and the absence is for longer than a day or so.

Unauthorised Holidays

You may become aware in advance that an employee plans to take unauthorised holiday. This is most often connected with holiday requests that you legitimately turn down, but when the employee tells you that they are taking the time off anyway, because a holiday or flight has already been booked.

Where an employee has a holiday request turned down, you should write to them confirming the legal position. Even if you choose not to do this for all declined holiday requests, as a minimum, you should do it if you subsequently find out that an employee plans to take the time off work anyway. The employee may tell you this directly – often in a fit of temper – or you may hear it from another member of staff.

The letter to the employee should state that their holiday request for the relevant dates was declined and set out the reasons why. It should go on to say that, if the employee does still take the time off, not only will they not be paid for it but it will also constitute unauthorised absence. The letter should make it clear that unauthorised absence is a very serious disciplinary offence amounting to potential gross misconduct and that the employee will be at risk of summary dismissal on return from the holiday. You should finish by inviting the employee to reconsider their position in light of the possible consequences.

If the employee ignores the letter and goes on holiday, on their return you should invite them to a formal disciplinary hearing to discuss the matter. Don’t try to hold this meeting in the employee’s absence, given that you already know that they would be unable to attend. Instead, suspend the employee on the day that they return and set up the disciplinary hearing for a few days later. Assuming that a fair disciplinary procedure is followed and that you had legitimate reasons for turning down the employee’s annual leave request, a dismissal on these grounds is likely to be fair.

As with all disciplinary and dismissal issues, make sure that you have a proper process in place and that you follow it to the letter. If you don’t have a procedure for dealing with unauthorised absence or any other staff issues, get in touch and we’ll talk about how we can help you set up the processes that you need.

If you have any questions about how to handle unauthorised absence, contact me straight away by calling 0118 940 3032 or by clicking here to email me.

10 Reasons Not to Have Staff!

Posted on December 3, 2015 by Sue Ferguson

I know this might sound strange coming from an HR Consultant, but do you really need staff? Will they actually help your business to grow, or are they more hassle than they’re worth? This blog takes a tongue in cheek look at why you might actually be better off without them!

Reason One – If you don’t have staff, you know when something has been done, because you’ve done it. You don’t have to keep looking over someone’s shoulder, to see what they’re up to, and annoying and demotivating them in the process.

Reason Two – You don’t have to be worried about being bowled over by someone’s CV, which is possibly full of exaggerations. You don’t have to think about how many white lies they tell you, as they try to sell themselves in an interview. No staff means no need to waste time on recruitment.

Reason Three – Giving a job to a friend or a member of your family is never a good idea. If you don’t have staff, you’ll never have to upset anyone you know by not giving them the job. Just tell them that you don’t need staff and that you’d rather keep them as a great friend, or supportive member of the family. No need to fall out with them!

Reason Four – If you set up and run your own business, staff will never quite see your vision. It will be difficult to get them to see what you want from the businesses. If you don’t have staff, you can just focus on working on your vision yourself, rather than worrying about getting them to understand it.

Reason Five – No annoying processes to follow! Without staff, you don’t need to spend time putting together a Staff Handbook, or processes on everything from holidays, to maternity leave, to what they can say on social media (see Reason number Nine for more on this!)

Reason Six – You don’t have to pay anyone if you don’t have staff – you can keep all the money for yourself! After all, you earned it, so why shouldn’t you keep it all?

Reason Seven – Problems relating to harassment, bullying or stealing can’t rear their ugly heads if you don’t have staff to harass or bully each other (or you) or to steal from your business.

Reason Eight – Want to take a day off just because you feel like it? Want to turn up late for work, or not turn up all? Without staff, you can do it without having to justify your actions to them. And you don’t have to worry about them taking time off sick when really the problem is just a hangover!

Reason Nine – With no staff, you don’t need a social media policy and you don’t have to check what your staff are saying about your business on Twitter. They can’t waste company time on Facebook either, if they don’t work for you.

Reason Ten – There’s no need for an expensive Christmas party! Instead, go out for a meal with some friends, treat your spouse to a night at a nice hotel or go and see your favourite band in concert!

So have I put you off having staff, or taking on any more? If so, please don’t just sack all the staff you have now so you can enjoy the benefits of not having any. You’ll need a proper process for that!

Your Clients vs Your Employees – Whose Side Do You Take?

Posted on November 18, 2015 by Sue Ferguson

When your important client refuses to have one of your employees back at its office, as the employer, you naturally have to take steps to protect the commercial interests of your company and maintain a good business relationship with your client. At the same time, you have to balance the employment rights of your employee.

What are the legal issues?

If your first response is to dismiss your employee, without taking any steps to find a solution or take account of any injustice to the employee, there will be a substantial risk of a successful unfair dismissal claim. However, the tribunals recognise the difficulties for employers where there is third-party pressure to dismiss, coming from an important client. You must act reasonably before reaching a decision to dismiss.

What’s the nature of the problem?

The first step is for you to find out the reason why the client has objected to your employee, to see if the problem can be resolved. In some instances the reason may be perfectly clear. For example, there may have been an incident of misconduct at the client’s office, or an argument between the employee and senior personnel at the client’s workplace. In other instances it may be less clear: the client might disapprove of a particular working practice, which the employee could be asked to modify or correct to the client’s satisfaction.

Even where the situation is serious, a tribunal is likely to want to know that, as the employer, you have taken steps to resolve the issue. You will therefore need to have a written record of your discussions with your client. If possible, you should also have in writing from the client, their objections to your employee. Even though you may not be in a position to establish the truth of the client’s allegations, and you may not agree with the client’s actions, the commercial pressure may still provide sufficient grounds for a fair dismissal on grounds of some other substantial reason.

What about injustice to your employee?

If your client is adamant that they will have nothing further to do with your employee, you must consider what injustice might be caused to the employee when deciding whether or not to dismiss. Factors to take into consideration would include length of service and how satisfactory that service has been to date.

Alternatives to dismissal should be explored as this will help to address any injustice to the employee. If there has been a conduct issue at the client’s workplace, you will need to follow its disciplinary procedure. Clearly, where gross misconduct is proved within those disciplinary proceedings, you will have conduct as the reason for dismissal and need not rely on some other substantial reason.

Check your employee’s contract

You have more chance of a fair dismissal due to client pressure if the employee has been warned that the client may intervene to have him or her removed. It is not unusual for commercial contracts to include a clause that says that a client may ask a supplier to remove any employee whom the client considers unsuitable. On induction, employees should be informed of the importance of maintaining good working relations with the client and of the client’s right to insist on removal of employees, if it says so in their contract.

So whose side do you take? It will depend on each individual situation, which you must handle carefully, considering all the specific details, before you reach any decision. Listen to both sides of the case and seek to find a solution that suits all the parties – you as the employer, your employee and your client.

Holiday Commission Payments – The Verdict

Posted on April 29, 2015 by Sue Ferguson

Finally we have the decision about the calculation of commission payments.

This well publicised case was brought by Mr Lock, an employee of British Gas. He was paid a basic salary and commission based on the sales he made which represented, on average, over 60% of his take home pay.

British Gas paid holiday pay to Mr Lock based on his basic salary only, plus commission on sales he had earned prior to the holiday period. This resulted, in the weeks and months after the period of leave, in times when Mr Lock only received basic salary and not commission. This was because Mr Lock was not at work during the period of leave, did not make sales and did not generate any commission.

Mr Lock brought a claim against British Gas contending that his holiday pay should be based on basic salary and average commission.

The employment tribunal asked the European Court of Justice (ECJ) whether employers should include commission when calculating holiday pay and both decided that Mr Lock should be paid holiday pay including overtime. Since the ECJ we have been awaiting for the employment tribunal to see how to give effect to the ECJ decision.

At the hearing Leicester employment tribunal made it clear that the case was not about whether the commission received by Mr Lock should be included because the ECJ had already decided that it should. The case was about whether the Working Time Regulations could be interpreted to give effect to the ECJ decision.

The employment tribunal concluded that it could by adding wording to the Working Time Regulations which requires employers with workers who have normal working hours but who receive commission or similar payments to calculate holiday pay as if their pay varied with the amount of work done. The effect is to require employers to calculate holiday pay based on an average of the previous 12 weeks’ pay.

The Next Steps

Not all commission payments will qualify and have to be taken into account. You should reconsider how you calculate holiday pay if you operate a similar commission scheme, as you may face a claim for back pay. Legislation was introduced to limit the impact of such claims by restricting back pay for two years for cases on or after 1 July 2015.

This decision relates only to the calculation of four week’s holiday and not the entire current statutory minimum of 5.6 weeks or any enhanced holiday. You should also check any contractual provisions. If you need any help calculating holiday pay for your employees, call us on 0118 940 3032 or click here to email us.

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