Employment Law Changes for Spring 2015

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Employment Law is constantly changing. To make sure you stay on the right side of the law, and do the right thing by your employees, here are some of the issues you need to know about.

Shared Parental Leave – this will allow eligible mothers, fathers, partners and adopters to choose how to share time off work after their child is born or placed for adoption. Employed mothers will still be entitled to 52 weeks of maternity leave and 39 weeks of statutory maternity pay or maternity allowance. If she chooses, an eligible mother can end her maternity leave early and, with her partner or the child’s father, opt for Shared Parental Leave instead of Maternity Leave. If they both meet the qualifying requirements, they will need to decide how they want to divide their Shared Parental Leave and Pay entitlement.

Antenatal Rights – from 1 October 2014, the partner of a pregnant woman has been allowed to take unpaid time off work to attend antenatal appointments with her. Partners are allowed time off for up to two antenatal appointments, capped at 6.5 hours per appointment. Confusion might arise because in some cases, the partner might not be the biological father of the child. They could be the mother’s spouse, civil partner, or partner in an enduring relationship. It could also be the parents of a child in a surrogacy arrangement.

Fit for Work – this service helps employees stay in, or return to work. It provides an occupational health assessment and general health and work advice to employees, employers and GPs. It will not replace, but will complement existing occupational health services provided by employers. There will be a phased roll out of the referral service taking place over a period of months during 2015.

Every time a change is made to Employment Law, your Staff Handbook will become out of date. You don’t need to update it every month, but you do need to be aware of the legal changes and how they affect your employees and your business. If your Handbook has not been updated for a couple of years, it’s best to get up to date information on any specific issue, before you take action.

To help keep your business up to date, book your place on our next Employment Law Update Workshop. On 21 May 2015 we’ll be spending the morning at Hennerton Golf Club in Wargrave, Berkshire, going through the changes. We’ll talk about how they will specifically impact on your business and what you need to be aware of, in order to stay on the right side of the law. Click here to book your place for just £15 +VAT.

Communication is the Most Powerful HR Tool

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Communicating on a regular basis with your employees is one of the most powerful HR tools available to you. Talking to your staff can help prevent small issues from turning into more complex, potentially expensive ones, such as grievances or disciplinary problems. Finding out what your employees are thinking can even help you encourage them to work harder for your business.

How do you do this?

One of my clients called me in to help them sort out some problems recently. The management had noticed that their staff were complaining about not being told what was going on in the business. There was actually nothing happening for them to worry about, but because the management didn’t tell them anything, they started to think that the management was hiding something. A regular open forum was held at their quarterly staff meetings, giving employees the chance to speak up and ask questions; but no one ever did. So the managers assumed that everyone was happy.

To find out more, I arranged a meeting with a cross section of the staff, to ask them how they really felt about the communication in the business and how it could improve. One thing they told me was that no one liked asking questions in the open forum. No had had the courage to stand up in front the whole business to speak out!

Next I had a meeting with the directors of the business, to report back what I had found out. There was another staff meeting coming up, so instead of expecting employees to voice their concerns at the open forum, we came up with an alternative. Before the staff meeting, we would split the employees into a number of smaller groups, each with one of the directors. They would ask their group how they would like to be communicated with. One person from each group would then bring forward the ideas from their group to present to the whole business. This allowed people who were brave enough to stand up in front of the colleagues the opportunity to do so.

At the very next staff meeting, a whole range of issues where brought up in front of the whole business in this way. It gave the employees a real chance to tell the management what they thought. There was an opportunity to really discuss, openly, what was going on in the business (and what wasn’t going on!) Concerns were aired and fears where allayed. The end result was a very happy staff – and happy management too.

This is just one example of how communication can be used to improve a business. This solution worked for this business – what is important is that you work with your staff to find out what will be the most appropriate for them.

When you have regular and open lines of communication with your employees, you can help to prevent negative issues from arising and build a happy, engaged and productive team for your business.

Are Your Employees Fit for Work?

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The Department for Work & Pensions has finally launched its service for employers, employees and GPs, to help employees who have been sick for four weeks or more to return to work.

It has been designed to reduce sick pay costs for employers by facilitating a quicker return to work and by providing an occupational health service to small businesses with limited access to this type of resource.

As an employer you can access web and telephone advice about any work related health matters affecting you and your employees by visiting www.FitForWork.org or by calling 0800 032 6235.

It is not mandatory to use the service but you should now consider updating your sickness absence policies to reflect the availability of Fit for Work. You should make sure your managers know about the resources offered and that they may be contacted by the service concerning an employee referred to them. They also need to understand how to deal with a Return to Work Plan from Fit for Work and the fact that this plan removes the need for a fit note while it remains current.

You can refer an employee to Fit for Work if:

  • They are still employed by you
  • They have been absent for four weeks or more
  • They have not been referred for an assessment within the last 12 months
  • They have provided consent to be referred and
  • They have not already been referred to the service by their GP.

Fit for Work offers:

  • Advice by telephone and online, including information on adjustments at work or general work related health advice
  • Referral for an occupational health assessment. Employees referred will be contacted within two days of the referral and a telephone assessment completed. In some cases a face to face assessment may be deemed necessary
  • A Return to Work Plan. This will be provided to the employer by email and the employer should then consider whether it can act on the recommendations.

Fit for Work may contact you to gain an understanding of your specific workplace, when recommendations in the Return to Work Plan have not been actioned, or in cases where the relationship between you and your employee are identified as one of the obstacles to a return to work.

Employees will be discharged from Fit for Work when they have returned to work (including on a phased return basis) or when the Fit for Work service can no longer provide assistance or if a return to work has not been possible after three months.

Find out more at www.FitForWork.org or call 0800 032 6235.

Can Santa Get the Sack?

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Santa

Can Santa get the sack?

Christmas is coming, the goose is getting fat … but so is Santa! He’s now too big to fit down the chimney; the elves think they have man flu; and Rudolf says the roads are blocked with snow so he can’t get to work!

You might think that Christmas runs smoothly at the North Pole – after all, they have all year to plan it. However, this year there are a few problems for the Head Reindeer (HR) department to sort out.

Father Christmas is too big to fit down the chimney. All year Santa has been relaxing at the North Pole and as a result, his girth has expanded somewhat. The Head Reindeer is worried that he won’t be able to do his job properly – after all, he is supposed to climb down chimneys in order to deliver presents. Can he get the sack for not being able to carry out the work in his job description? If Santa is morbidly obese and can’t carry out his daily tasks, he could be classed as disabled. This means that sacking him because of his girth may be discrimination – something the Head Reindeer would like to avoid!

The elves think they have ‘man flu’. They’re sneezing and coughing and their noses are running, so they’re really like to stay in bed – especially during December when work gets really busy. Are they allowed to take time off sick, when Father Christmas thinks they just have colds? Staff taking time off for sickness usually increases over the winter months, so the Head Reindeer will need to speak to each of the elves and find out what’s actually wrong with them and make sure they have the right evidence to support the reasons for their absence. Keeping in contact with sick staff is always a good idea. After all, how can Christmas carry on without the elves?

Rudolf says the roads are blocked with snow. He says he can’t get to the office because of the weather conditions. He can’t really work from home, although for some staff, it’s worth setting up remote access, so that they can still work, even if they’re not in the office. The Head Reindeer needs to make sure that the Staff Handbook is up to date, to cover issues like bad weather. And he needs to find out how else to get Rudolf to work, if there is snow on the road, or Christmas might have to be cancelled.

With a little bit of forward planning (and perhaps some advice from an expert) the Head Reindeer (HR) manager will be able to make sure that everything goes to plan for a great Christmas. At least he can let all the elves take time off together, once the festive period is over!

How Do Small Businesses Deal with Long Term Sickness?

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Long term sickness can be difficult to deal with in any business. However, when that business is staffed by just two or three people, when one of them needs to take a long period of time off work, because they are ill, the impact can be even greater. How do you cope without them? How long do you have to keep their job open?

One of our clients is a small agency with just three members of staff, including the business owner. Earlier this year, their secretary was rushed into hospital. After three weeks of tests, she was told that she should take another 2-3 months to fully recover. The business owner knew that this was the best course of action, not wanting his employee to return to work before she was really well enough to work again. So that he and his other team member weren’t over loaded with work (which could have made both of them stressed and ill!) they took on a part-time Admin Assistant to cover the work. The boss still had to pay Statutory Sick Pay to his recuperating secretary and, due to changes to the law that occurred in April 2014, he was not able to claim any of this back – something that is easier for larger companies to bear.

All through this time, the business owner had kept in touch with his secretary to see how she was getting on. As the agreed period of sick leave was coming to an end, it became apparent that she might not be ready to return to a full-time job. There were other complications that meant that a full risk assessment would have to be carried out, should she return. How long should the job be kept open?

Our advice to our client was to write to the employee’s doctor and ask for a full medical report. Even though this had to be paid for, it showed that she was not ready to go back to working full-time. During her time away, the other members of the small team had realised that they really did need full-time support. Because the lines of communication had been kept open, the three of them were able to reach an amicable decision about the future, which suited both of them.

The lessons they have all taken away from this situation is to stay in communication (aside from the fact that it shows you care!) and to get advice from an HR professional, to make sure you are complying with employment law at all stages. When you follow these two tips, potentially tricky situations are so much easier to resolve.

 

Holiday Pay Judgment: What Does it Mean for Your Business?

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On 4 November 2014, the Employment Appeal Tribunal (EAT) handed down its decision in three significant employment cases. It is a ground-breaking decision which gives some clarity to various European Judgments on the issue.

The key points to take from the decision are that:

  1. Holiday pay should be equivalent to a worker’s “normal” pay. What is “normal” depends on whether the payment in question has been made for a sufficient period of time to justify the label of being “normal” (the regularity / pattern of payments will be relevant in making this decision).
  2. Overtime which a worker is not permitted to refuse (i.e. guaranteed and non-guaranteed overtime) must count as part of their “normal” pay when calculating the pay they should receive on holiday.
  3. The Working Time Regulations which transposed the European Working Time Directive into UK law is incompatible with the Directive, but can be interpreted so as to give effect to these changes.
  4. The vast majority of workers will only be able to recover underpayments in the last three months.

However, there are various intricacies which employers need to appreciate:

  1. The Judgment only applies in respect to the 20 days’ annual leave guaranteed under the Working Time Directive, not the additional 8 days’ leave which is a purely domestic-driven right, set out in the Working Time Regulations. As such, workers can expect to receive a higher rate of holiday pay (that which includes overtime, commissions and various other payments) for 20 out of their 28-days’ holiday per year, with the remaining 8 days being paid at the level it previously was, unless their employer decides to pay all 28 days at the higher level.
  2. Where workers’ previous periods of holiday are separated by a gap of less than 3 months, they may be able to recover underpayments for a longer period than the 3-month limit set out above, by arguing that the underpayments form part of a “series”. Even in those cases however, it is unlikely that they will be able to go back in time to recover underpaid holiday for more than one holiday year.
  3. There is no definitive statement in the Judgment to confirm that purely voluntary overtime (that which the employer is not obliged to offer and the worker is not obliged to accept) would also be included. However, comments in the Judgment and the underlying ethos of the various European decisions could be said to lean towards the view that voluntary overtime which is regularly worked by a worker would count as part of their “normal” pay and hence should be included when calculating holiday pay.
  4. Whilst the domestic 12-week reference period for calculating average pay might be maintained going forward, there could be a change to this (brought about through case law or legislative change) due to the fact that some workers’ pay is highly variable throughout the year and a 12-week snapshot could be misleading depending on the 12-week period captured. For example, a retail worker who does far more overtime during certain periods (perhaps Christmas) would have a far higher average number of hours as their “normal pay” if they took leave in January. Similarly, a salesperson who takes leave shortly after an unusually large commission payment could receive inflated holiday pay which is not representative of “normal pay”. In such cases, a longer period may be necessary and justified. In one of the Opinions of an Advocate General, it was suggested that a 12-month reference period might be appropriate. This is not binding however, and we shall have to wait and see how this issue is resolved.

As a result of this Judgment and other employment cases we can now say with some confidence that the following elements of a worker’s pay should count when calculating their first 20 days’ statutory holiday in a holiday year:

  • Commission payments
  • Guaranteed and non-guaranteed overtime that is regularly worked
  • Incentive bonuses
  • Travel time payments (not expenses, but payments for the time spent travelling)
  • Shift premia
  • Seniority payments (payments linked to qualifications/grade/experience)
  • Stand-by payments
  • Certain other payments (such as “flying pay” and “time away pay” provided such payments are not expenses).

In Conclusion

The recent EAT decision will give some comfort to businesses that feared potential back-payments for 16 years’ holiday entitlements by their workforce. However, you must now resolve past liabilities and start paying correctly going forward. This will increase your operating costs. It is estimated to be approximately a 3-5% increase on payroll. The parties have been granted leave to appeal to the Court of Appeal, so the position on this issue may yet change.

Employment Law Changes – What’s New for 2014?

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Twice a year we run an Employment Law update workshop, where we go through all the recent and forthcoming changes. This helps our clients keep up to date on the law, without getting bogged down in all the details.

Here’s what we covered at our workshop in October 2014:

January 2014

  • TUPE – collective redundancy consultations can now be started before the transfer, with a requirement for service provision to be fundamentally the same before and after the transfer
  • The right to be accompanied – workers can now choose any companion to be with them in a meeting, providing they are a work colleague or a trade union representative.

March 2014

  • Employers will face penalties of up to 100% of the unpaid wages and a maximum penalty of £20,000 for not paying the National Minimum Wage
  • Rehabilitation periods have been reduced and fewer convictions now need to be disclosed.

April 2014

  • Early conciliation – Acas must now be contacted before a tribunal application can be made
  • The discrimination questionnaire has been abolished
  • Tribunal financial penalties – tribunals have the power to order penalties for the losing employers, ranging from £100 to £5000 where breach has “one or more aggravating factors”.

June 2014

  • Flexible working – this has been extended to all employees with 26 weeks service
  • Small Business and Enterprise Bill – this includes changes to National Minimum Wage breach penalties and restricting the number of postponements of tribunal hearings.

July 2014

  • TUPE changes – from 31 July businesses, employing less than 10 people are able to consult individually.

October 2014

  • National Minimum Wages were increased
  • Antenatal rights – time off must be given for an employee to accompany a pregnant partner for two appointments.

Watch this space for news of our next Employment Law workshop, which will be held in April or May 2015, when we’ll discuss the next round of changes. These will include changes to parental leave, adoption rights and shared parental leave in April 2015; and a new tax free childcare scheme in the Autumn 2015.

Or subscribe to our email newsletter and you’ll receive details as soon as they’re published.

Getting to Grips with Grievance

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I’ve been working with one of my clients to look at how their employees feel they’re being treated by their managers. Unfortunately, in one case, it has resulted in a member of staff being signed off sick due to stress. They have been asked to come back to work, but they don’t want to return and have to work for the same manager. In this particular small business, there is no one else for whom they could work.

It is a sad story and it is one that can be avoided.

If you think that one of your employees is unhappy, it really is best to deal with it early. Find out as soon as you can what the problem is. Look at using regular appraisals or ‘job chats’ to keep in touch with your employees, so that no small issues are ignored. The small ones can be the ones that escalate into much larger, more complex issues, if they’re not dealt with while they’re still small.

If you find out that someone is unhappy about working under you, find someone else to deal with the situation. An employee with a problem is more likely to speak to someone more impartial than the person with whom they have the actual grievance.

To find out more about how to prevent problems occurring, have a look at this blog about how to make appraisals really easy; for tips on improving performance, watch some of our videos here.

For more advice on how to deal with grievances and discipline at work, have a look at this Acas guide.

Our Guide to Employment Law Changes – 1 October 2014

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On 23 October we’ll running our next Employment Law Update workshop. This half day session is aimed at business owners and managers who need to keep up to speed with the changes, to make sure they stay legal. We’ll go through all the new changes and give you the opportunity to find out how they might affect your business.

There are still some places available, so to join us at Hennerton Golf Club in Wargrave, Berkshire for just £15 +VAT, click here.

Here are a few of the changes we’ll be looking at.

Antenatal rights for fathers and partners

Working fathers will have the choice to take unpaid time off to attend up to two antenatal appointments with a pregnant partner. These rights will be available for employees who are in “qualifying relationships”, which means they:

  • are the expected child’s father
  • are the pregnant woman’s husband or civil partner
  • live with the woman in an enduring family relationship and are not a relative
  • are one of a same-sex couple who is to be treated as the child’s parent under the assisted reproduction provisions
  • are the potential applicant for a parental order in relation to a child who is expected to be born to a surrogate mother.

From 1 October both employees are permitted to take time off to attend the same appointment. However you may refuse to grant an employee time off where it is “reasonable” to do so. But you must tread carefully as employees can bring a tribunal claim against you for unreasonably refusing time off. You should adopt a clear policy of how such requests will be dealt with and the parameters for refusal.

Employment tribunals must order equal pay audits

Greater sanctions are to come into force to ensure that employers are carrying out equal pay audits. As part of a new tougher regime, employers who are found in breach of equal pay legislation can be ordered by the Employment Tribunals to carry out an equal pay audit and make the results of that audit public. If the Tribunal determines that you have unreasonably failed to comply with its obligations, it can impose a fine of up to £5,000 at each hearing, in order to address your non-compliance.

Reservists better protected against unfair dismissal

To encourage more new recruits to sign up as a reservist of the armed forces, the Government is making signing up more attractive to people who worry that enlisting might cause problems with their job and career. From 1 October 2014, the statutory qualifying period for unfair dismissal will be removed in the case of a dismissal connected with an employee’s membership of the Reserve Forces. However, reservists will still have to prove that it was unfair to dismiss them because of their absences from work – they will not be treated as automatically unfairly dismissed.

The changes will apply to employees whose effective date of termination falls after 1 October 2014. Prior to these changes, reservists were at a considerable disadvantage when pursuing a claim for unfair dismissal as a period of call-up could not count towards the two year qualifying period needed to bring a claim.

The government is also reducing the financial burden on reservists’ employers.Small and medium-sized employers will now be able to claim £500 per month (pro-rated for part-months and part-time employees working fewer than 35 hours per week) from the Ministry of Defence during periods when a reservist employee is absent on military service.  Employers will also be able to claim up to £110 a day for additional salary costs incurred in providing cover for the absent reservist.

Increase in national minimum wage

Following the recommendations of the Low Pay Commission the Government has implemented the following increases to the national minimum wage which take effect from 1 October 2014: the standard rate for those aged 21 and above will increase from £6.31 to £6.50 an hour; the rate for those aged 18-20 will increase from £5.03 to £5.13 an hour; and the rate for those above the compulsory school but aged under 18 will increase from £3.72 to £3.79 an hour.

There’s a lot more happening, so to keep ahead of the changes and to find out more about these ones, join us on our workshop on 23 October 2014.

 

Three Stages to Successful Recruitment

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Recently I’ve been helping some clients sort out problems that have arisen because they didn’t carefully think through their recruitment process, when they were taking on new members of staff. There’s a great deal that you can do to avoid the problems, so in this issue of my newsletter I’m going to cover some of the basics of getting recruitment right – especially if you’re taking on your first member of staff.

We’ll look at how to find the best person, then we’ll look at what to do when they start working for you and finally I’ll talk about what to do at the end of their probation. This three stage process will help you find and keep hold of the best people for your business – and avoid some costly pitfalls!

Part One – How do you find the right person?

So your business is growing and you’re getting busier and busier. You’re working longer hours, just to keep up with the work and the demands of your clients. You don’t want to turn business away, so you keep working all the hours you can, including evenings, weekends and holidays. Eventually, when your friends and family are really fed up of not seeing you and you’re completely exhausted, you decide it’s time to take on your first member staff. Click here to see what you should do next.

Part Two – How do make sure they get off to the best start?

Recruitment can be a long, expensive and time consuming process. After all the effort of finding the right person to join your team, you want to help them settled in as quickly and smoothly as possible. Some new staff have been known not to show up after the first weekend, or even on their second day and you don’t want that!

Particularly if you’re taking on your first member of staff, take the time to plan their induction. Make sure they have somewhere to sit and a computer to work at – if that’s part of their job! Find out what to include in your induction training here.

Part Three – What do you do at the end of their probation?

The first thing to do is to make sure that you have actually agreed a probationary period with your new employee. Three months is the minimum and works well for simple jobs, but this can go very quickly. A six month probationary period is a good length of time for you to decide whether or not you want to keep your new employee within your business. Click here to see what else you need to do at this stage.

Recruiting can cost a lot in terms of time and money; getting it wrong can cost even more. You can avoid the pitfalls by following this advice. If you have any specific questions about recruitment for your business, do get in touch.