Legal Updates? What You Need to Know Now

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In November 2013 I ran a workshop to share some of the more recent employment law updates. Here are the details of just three of the issues we covered and what you need to know.

Flexible working. At present, parents and carers with at least 26 weeks employment can make one request for flexible working in 12 months and a statutory procedure applies to considering the request. From Spring 2014, all employees with at least 26 weeks continuous employment can make one request for flexible working in 12 months. Requests must be considered in a reasonable manner and within a reasonable period.

ACAS has produced a draft code for you to follow, when considering flexible working requests, which says:

  • Talk to your employee as soon as possible
  • Discuss the request in private but allow your employee to be accompanied
  • Approach requests from the presumption that they will be granted unless there is a business reason for not doing so
  • Inform your employee of your decision in writing as soon as possible
  • If your employee’s request is granted, or granted with modifications, discuss with them how and when the changes might best be implemented
  • If your employee’s request is rejected, ensure that the rejection is for one of the business reasons permitted by legislation and allow the employee to appeal it
  • Consider and decide on all requests, including any appeals, within a period of three months from initial receipt, unless an extension is agreed with the employee.

Shared parental leave. The law currently says that mothers can take 52 weeks maternity leave (39 paid weeks and 13 unpaid weeks) and that fathers or partners can take 2 weeks ordinary paternity leave, with the right to take up to 26 weeks additional paternity leave. From Spring 2015 you will need to consider shared paternity leave. This gives new parents the possibility of sharing the untaken balance of maternity leave and receiving pay for ‘flexible parental leave’. This is where parents can share 50 weeks leave and the 37 weeks pay due to the mother. Flexible parental leave can be taken in one week blocks interspersed with work and parents can take leave at the same time.

Unpaid parental leave. Currently, an employee with one year’s service and a child under 5 can take 18 weeks unpaid parental leave. This applies to each child and to each parent, with a maximum of 4 weeks unpaid leave allowed in any year. From 2015, the age of the child will increase from 5 to 18 years.

Does all this sound too confusing? If it does or you’re worried about how any of these changes will affect your business, please do get in touch and we can talk about it.

I’ll be running another employment law update in May 2014, after the next round of changes happen in April next year. Keep an eye on this blog for the date and details.

Zero Hour Contracts – What Do You Need to Know about Them?

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Some companies, especially those in retail, have a huge spike in labour needs in November and December. What are the options for dealing with this?

Here are the most common ways of coping with seasonal labour requirements.

Agency workers – where an employment agency deals with the administration involved in fluctuating workforce needs. You can pay the agency for these services, but it can be a cost- and time-effective solution.

Traditional fixed-term contracts – these are not quite as flexible as the other options, but short-notice provisions are often inserted into the contracts.

Zero hours contracts – as the employer you are under no obligation to offer work and (generally, although not always) your employee is under no obligation to accept any work offered. This provides both parties with greater flexibility.

Increased overtime (including weekend work) – the viability of this option depends on how much more labour is needed.

There has been a lot of negative publicity surrounding the use of zero hours contracts. Are they even legal?

Many zero hours contracts do not give workers full employment rights. It is difficult to construe an employment relationship when neither party has to provide and/or undertake work. Seasonal working is a good example of when zero hours contracts can be used effectively. Fluctuations within the busy period mean that the employer may require the flexibility that only zero hours contracts provide (if recruiting direct). Recent bad press surrounding zero hours contracts relates mainly to large organisations using them for their core workforce. While not unlawful, there is a growing belief that having core workforces working zero hours contracts is an attempt to short-circuit employment rights legislation.

One of my employees is underperforming. How long do I give them as a review period?

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The answer to this question is that there’s no statutory time frame for improvements for underperformance.

Timescales for an employee’s improvement must be reasonable and will depend on the circumstances, including the employee’s role and position within your company and his or her length of service and past performance. In some cases, a review period of a few weeks may be sufficient – for tasks that are carried out every day, or for performance that can be seen every day, such as starting work on time. In others cases, a review period of several months may be more appropriate, for longer term activities such as sales.

When you agree to provide your employee with additional training or support, this will need to take place before their performance can sensibly be measured again. You should make sure that you monitor your employee’s performance during the relevant review period. The period should be long enough to allow you to assess whether or not your employee has made and sustained the necessary improvements.

The answer to this question will also be different for each different situation. If you have a member of staff whose performance needs to be reviewed, get in touch and we can talk about the situation, to help you work out the best way forward.

You can also find out more by watching one of my recent videos, by clicking here.

Do Employers have to Supply References for Employees?

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As an employer, you might be asked for a reference for a member of staff who is leaving. You might also be asked to provide a reference by a bank or a landlord. You’re not obliged to provide one in any of these cases unless there is something in the contract to say you have agreed to do so. You can actually refuse to provide a reference as there is no statutory duty to do so for an existing or ex-employee.

Former employees

When one of your employees leaves, you will have to decide what to say to other employers who call for a reference. The decision could be straightforward if the employee is leaving on good terms, you can simply tell the whole glowing truth to any prospective employer who calls for a reference.

But if the employee left in difficult circumstances, you face a more difficult task. If you are not careful in your statements about former employees, you might find yourself being sued for defamation of character. If the employee who is leaving feels that you intentionally damaged his or her reputation by making negative statements about the employee, you could get into trouble. This would be a perticular problem if the employee lost their new job as a result of the reference you provided.

In all cases, it is best to have a set policy on giving references to include only basic information about the employee’s length of service, salary and position held. Your best policy is to say as little as possible and stick to facts you can prove.

Settlement Agreements

You may have an obligation to provide a reference for a former employee if it has agreed to do so under the terms of a settlement agreement (known as a ‘compromise agreement’ up to 29 July 2013). In these circumstances, specific wording to be included in the reference is sometimes agreed between the parties.

 

Question: Christmas is coming – Are Employees Who Work on Bank Holidays Entitled To Pay in Lieu or Additional Holidays?

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Answer: This depends on the overall holiday entitlement and the terms of the employment contract. If the entitlement is the statutory minimum (which is 28 days including Bank Holidays) and an employee works on a Bank Holiday, they must have a day off in lieu so that the total paid leave stays at 28 days per year. This is for employees who work five days per week.

What about pay? If an employee is entitled to the day off on a Bank Holiday, then they will be entitled to their normal rate of pay for this, in the same way as they would for any other holiday. Contrary to popular belief, for those working on a Bank Holiday, there is no entitlement to extra pay, unless the terms of the person?s contract state otherwise. However, if employees are normally paid extra for working a Bank Holiday that should apply when additional public holiday days are announced too.

How about part-time employees?

Your obligation to part-time workers is governed by the Part-time Workers (Prevention of Less Favorable Treatment) Regulations 2000. This means that part-time workers are entitled to the same holidays as comparable full-time workers, but on a pro rata basis.

You must make sure that a part-time employee receives his or her pro rated entitlement if bank holidays are included in the employee’s statutory minimum holiday entitlement, or if you grant holiday that exceeds the statutory minimum to your full-time workers.

Because most bank holidays fall on a Monday or Friday, part-time employees who do not work on these days could be entitled to proportionately fewer days off compared with full-time employees.

To avoid a complaint of less favorable many employers provide part-time employees with a pro rated bank holiday entitlement. Te best option is to calculate pro rated bank holiday entitlement according to the number of hours that the part-time employee works, irrespective of whether or not he or she works on the days on which bank holidays fall.

We’re building up a bank of answers to questions we’re frequently asked. Click here to see the questions and answers on our website. If you have a question that you’d like us to answer, email us or give us a call in confidence.

Seven Steps for Dealing with Poor Performance in a Growing Business – Part Three

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Last month I wrote about steps four and five of a seven stage process that you need to follow, when you have to deal with issues of poor performance in your business. Click here to read that blog again. If you missed steps one, two and three, you can read them here.

When you’re trying to reach a higher level in your business, you’re only as strong as your weakest member. Dealing with somebody in your team who doesn’t live up to the standards you require is difficult, both legally and ethically. Before you show an employee the red card, be sure you have tried everything that is expected from you, the employer, to guide them and push their performance to a higher level. To deal with the matter correctly, here are the remaining steps to follow:

Step 6: Agree a performance improvement plan

Where you have issued a warning, agree a written performance improvement plan with your employee. This will help you to formally identify unsatisfactory aspects of performance, agree on where further training, coaching, or other support could improve the matter and set new objectives or reiterate existing ones. You can also agree the standards to be achieved, within clear and reasonable timescales.

Provide your employee with appropriate support to improve their performance, allowing them a sufficient and reasonable period to make progress and carefully monitor this.

Step 7: Follow-up meeting

At the end of the agreed review period, arrange a formal follow-up meeting to discuss your employee’s progress and repeat the procedure from Step 3 if necessary. Up to three performance review meetings should be held before dismissal is considered.

If your employee’s performance reaches a satisfactory standard within the review period and no further action is necessary, inform your employee in writing. If this is not the case then agree a further performance improvement plan and set a further period in which your employee must improve.

Finally, with any incidence of poor performance it is crucial that you follow the Acas Code of Practice on discipline and grievance and ensure that employees are treated fairly and consistently.

Deal with issues of poor performance as soon as you notice them and you’ll find it much easier to work them out, to get the best results for your employees and your business.

If you missed the first two parts of this process here, click here for Part One and click here for Part Two.

Are Your Staff Still Legal? Employment Law Update

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Employment law is updated regularly. To keep you up to speed and on the right side of the law, I?m running a workshop in Reading on 20 November 2013. Click here to book your place for just £10 +VAT.

In the meantime, here is a quick summary of some of the more recent updates that you need to know about, that have been made since the update blog I wrote in July 2013.

Employment tribunal fees introduced. Fees are now charged for issuing and hearing tribunal claims and for various applications made during tribunal proceedings. Fees were introduced on 29 July 2013 in respect of claims issued on or after that date. Claims already before the tribunal at that date are unaffected. Click here to read a leaflet that tells you more about the exact charges.

New employment tribunal rules in force. The new rules are intended to simplify and streamline the tribunal process and to cut costs. They came into force on 29 July 2013 and apply to all claims irrespective of when they were issued.

Settlement agreements. Also from 29 July 2013, the Government’s proposals for facilitating the use of settlement agreements came into force. As an employer you can now offer a settlement agreement at any time, irrespective of whether there is an existing dispute. Neither you nor your employee can later refer to the fact that an agreement has been offered in subsequent unfair dismissal proceedings, should an agreement not be reached.

Compensatory award cap. A cap on the compensatory award of one year’s pay has been introduced.  The previous statutory maximum will apply, if lower. The new cap applies where the effective date of termination is on or after 29 July 2013.

Employee shareholder contracts. Since September 2013 you are able to offer employee shareholder contracts to new and existing staff, although existing staff cannot be forced to agree. Under these contracts, employee shareholders must be given free shares worth at least £2,000. Shares issued up to £50,000 in value will qualify for capital gains tax relief. In return, employee shareholders are required to give up their rights to claim unfair dismissal, a redundancy payment and to request flexible working and time off for training.

National minimum wage increases. The national minimum wage increased on 1 October 2013. Click here to see all the numbers and how they’ve changed.

And as if that’s not enough, there are more changes coming in April 2014! Some will affect maternity and paternity leave, so come to my next workshop to find out more.

How to Sack Someone

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No matter how hard you work at recruiting the best staff and keeping them engaged with their work and your business, at some point you may have to sack a member of your staff. Here’s a simple overview of the different (legal!) ways in which you can do this.

Dismissal is when you end an employee’s contract. When dismissing staff, you must do it fairly. There are different types of dismissal:

  1. Fair dismissal
  2. Unfair dismissal
  3. Constructive dismissal
  4. Wrongful dismissal

Fair and Unfair Dismissal

A dismissal is fair or unfair depending on:

  • Your reason for it, which must be valid. Reasons can include capability, conduct, redundancy or something that prevents staff from legally being able to do their job, such as a driver losing their driving licence
  • How you act during the dismissal process. Even if you have a fair reason, the dismissal is only fair if you also act reasonably during the dismissal and disciplinary process.

Constructive Dismissal

This is when an employee resigns because you’ve breached their employment contract. This could be a single serious event or a series of less serious events.

An employee could claim constructive dismissal if you:

  • Cut their wages without agreement
  • Unlawfully demote them
  • Allow them to be harassed, bullied or discriminated against
  • Unfairly increase their workload
  • Change the location of their workplace at short notice
  • Make them work in dangerous conditions

A constructive dismissal isn’t necessarily unfair – but it would be difficult for you to show that a breach of contract was fair.

Wrongful Dismissal

This is where you break the terms of an employee’s contract in the dismissal process, e.g. dismissing someone without giving them proper notice. Wrongful dismissal isn?t the same as unfair dismissal.

If an employee thinks you’ve dismissed them unfairly, constructively or wrongfully, they might take you to an employment tribunal.

How to Sack Someone

When it comes to actually dismissing a member of staff, your procedure should follow the advice set out in the Acas (Advisory, Conciliation and Arbitration Service) code of practice.

This is just an overview of the legal ways in which you can ask a member of staff to leave your business. There is more information online and if you’re having any staff issues, please do get in touch with me, to talk through your issues, before you make any decisions. You can always call me on 0118 940 3032 with your questions.

How to Give Great Feedback to Your Staff

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Motivating your employees is about more than your charisma and vision for your business. To help your employees perform their best, as their leader you need to provide feedback – the right kind, at the right time. Feedback is an essential tool for any manager, whether you run a small business or a large company.

Just as they need blood and oxygen, our brains need to receive comments about how they’re doing. Feedback works on the emotional system in the brain. It enables the brain to use higher-level thinking skills to decide how to continue doing good work, make the good work better, or make changes to get more positive responses and work harder toward company goals. Your leadership skills rely heavily on your ability to give and receive feedback.

Here are some ways in which you can feed your employees’ brains and give great feedback:

Be specific and timely. Comment while the task is still in the mind of your employee. This is especially important if you’re working toward a specific goal and you want to keep the momentum going. Specific feedback corrects or reinforces certain behaviours, enabling the brain to focus on something concrete, which it doesn’t do from a simple “Thank you.” If you decide to congratulate employees as a group, be sure to talk to each one personally as well.

Fit the feedback to the person. Now and then you may need to provide a pat on the back to one of your employees, or a nudge in the right direction, in a subtle yet supportive way. For such feedback to be really motivational, provide it in a way that’s best suited to the recipient.

Connect your feedback to company goals. Goals help the brain focus. Make your employees feel that their contributions are valued and create a positive emotion with the feedback. Some employers want to encourage competition, so they make sure that the entire company or department sees how everyone is doing.

Set up a schedule for follow-up conversations. A quick memo or email can easily be misinterpreted, so continued face-to-face feedback is best. Studies have shown that negative feedback may be less stressful to the brain than no feedback at all; for this reason, follow-ups are especially important for employees who need improvement. Put your message in writing as well as delivering it verbally.

Build on employees’ strengths when giving negative feedback. By beginning with the strengths, you involve the prefrontal cortex right away. If you begin with negativity, the information may never reach the frontal lobe; it may get stuck in the primitive emotional areas and put the employee in survival mode. Always give suggestions for improvement.

See if you can work all these points into your appraisals, or any time when you’re giving feedback and you’ll find it much easier to deliver, as well as much more effective in creating improvements in your employees’ performance.

With thanks to Marilee B. Sprenger, author of The Leadership Brain For Dummies

Getting Started with Performance Appraisals Part 2

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Here are some things to think about, before you carry out your annual staff appraisals, to make them less daunting and more effective. We’ll go into more details on these tips and what to actually in the appraisal meeting, at our forthcoming workshop on 11 September 2013.

Prepare. A good appraisal form will provide a natural order for proceedings, so use one. If you don’t have a standard appraisal form then find one online – there are plenty of templates available. Organize your paperwork to reflect the order of the appraisal and write down the sequence of items to be covered. If the appraisal form includes a self assessment section and/or feedback section, make sure you give this to each member of staff in plenty of time, allowing them to complete it before the meeting.

Part of your preparation should also consider ‘whole-person’ development, beyond and outside the job skill-set. Many people are not particularly interested in job skills training, but will be interested and motivated by other learning and development experiences. Get to know what your people are good at outside of their work. Appraisals are not just about job performance and job skills training. Appraisals should focus on helping the ‘whole person’ to grow and attain fulfilment.

Inform. Let your staff know when and where their appraisal will be held. Give them the chance to assemble any data and relevant performance and achievement records they need.

Venue. Plan a suitable venue that’s private and free from interruptions. Privacy is absolutely essential.

Layout.  Room layout and seating are important elements as they have huge influence on atmosphere and mood. Irrespective of content, the atmosphere and mood must be relaxed and informal. Remove barriers – don’t sit across the desk from your staff member; use a meeting table or easy chairs and sit at an angle to each other.

Introduction. Relax your member of staff by opening with a positive statement. Smile, be warm and friendly to create a calm and non-threatening atmosphere. Set the scene by explaining what will happen and encourage a discussion and as much input as possible from them

When you spend some time thinking about how you’ll carry out your annual appraisals, they’ll be much more effective for both you and your members of staff.

For more information, come to our workshop on 11 September 2013 for just  £12 +VAT. Click here for the details and online booking.