Category Archives: Employment Law

The Latest News on Zero Hours Contracts

Posted on by

The Government has banned the right to include an exclusivity clause in Zero Hours contracts. This means that you can’t employ someone on a Zero Hours contract and then try to prevent that person from doing other work, or stop them from working without your consent.

The clause is now illegal, so if any of your employees have this clause in their contract, as their employer, you can no longer enforce it. The ban became legal on 26 May 2015.

Zero Hours contracts, when used correctly, are very effective, e.g. for students during holiday periods or seasonal work. These casual contracts allow employers to hire staff with no guarantee of work. They mean employees work only when they are needed by employers, often at short notice. Their pay depends on how many hours they work. A Zero Hours contract is generally understood to be a contract between an employer and a worker where the employer is not obliged to provide any minimum working hours, and the worker is not obliged to accept any work offered. Zero hours workers have the same employment rights as regular workers, although they may have breaks in their contracts, which affect rights that accrue over time. They are also entitled to annual leave, the National Minimum Wage and pay for work-related travel in the same way as regular workers.

Zero hours contracts can be used to provide a flexible workforce to meet a temporary or changeable need for staff.

Examples may include a need for workers to cover:

  • unexpected or last-minute events (e.g. a restaurant needs extra staff to cater for a wedding party whose original venue cancelled)
  • temporary staff shortages (e.g. an office loses an essential specialist worker for a few weeks due to bereavement)
  • on-call/bank work (e.g. one of the clients of a care-worker company requires extra care for a short period of time).

If you have staff with Zero Hours contracts and you’re not sure if you have the exclusivity clause in those contracts, contact us on 0118 940 3032 or click here to email us and we’ll talk you through it.

 

It’s Time to Bring Your Staff Handbook Up to Date

Posted on by

Many businesses experience a quiet time in July and August, when staff and customers are on holiday. If this happens in your business, you can use the extra time you have to make sure that you’re up to date with all things HR.

When did you last check that your Staff Handbook was in line with current Employment Law? Every time changes are made to Employment law – which is usually at least twice every year, in the Spring and again in the Autumn – your handbook will become a bit more out of date. So far this year we’ve seen a number of changes to maternity and paternity laws, including shared parental leave. Flexible working laws have changed, along with those relating to attending antenatal appointments.

So how do you keep up to date?

The Acas website at www.acas.org.uk is a good source of information. It lists all the recent Employment Law changes. You’ll need to look at all the changes that have been made and work out which apply to your business. Then you’ll need to find the relevant sections within your Staff Handbook and bring them up to date. You should do the same with any staff forms and processes that you use, to make sure that you’re fully legal.

Once you’ve updated your HR processes and policies, you need to think about how to introduce the changes to your existing members of staff. If you publish your Handbook in hard copy, you can reissue it – but don’t just print it out and leave it on a shelf next to the old one! Let your employees know which policies have been changed and that they should read the Handbook, so they can see how the changes could affect them.

If you have an Intranet within your business, put your new Handbook onto it and tell your staff about the sections and laws that have changed, so that they can read the relevant sections.

However you share your Handbook, you need to encourage your staff to read it. You could ask each employee to sign a form showing that they’ve read the new Handbook and have understood how the changes affect them. This also gives them the opportunity to ask you about anything they don’t understand.

If your handbook is more than three years old, it will be out of date and will need a bit of work; if it’s more than five years old it will be more of an antique and you might even need a brand new one!

Does updating your own Staff Handbook could sound like a rather daunting task? If so, do get in touch to talk to us about how we can do it for you. Call us on call us on 0118 940 3032 or email sueferguson@optionshr.co.uk.

 

 

Are You Allowed to Use an E-Cigarette at Work?

Posted on by

A smoking ban has been in place in the UK since July 2007, preventing anyone from smoking indoors at work premises and other enclosed spaces. The ban applies to all substances that can be smoked, including cigarettes, herbal cigarettes, cigars and pipes – involving the burning of any substance.

Electronic cigarettes or e-cigarettes give off a vaporised water-based mist, but do not burn any substances. This means that, strictly speaking, they’re not covered by the smoking ban. The increased use of e-cigarettes has prompted a government debate, and it seems that there are now plans to make it illegal to sell them to under 18s, or to adults on their behalf. With the growing use of e-cigarettes, this could be a good time to re-assess your workplace rules on smoking.

Here we’ll give you our answers to some of the common questions we’re currently being asked.

 

Do we have to provide a separate area for e-smokers?

Employees who want to stop smoking by using e-cigarettes may complain about having to use the same designated smoking area as those smoking tobacco cigarettes. However, the law does not require you to provide any smoking area for your staff.

If you choose to designate an area for tobacco smokers, as most employers do, you must make sure that it is legally compliant. It can’t be enclosed and the smoke must not be able to enter the rest of the workplace. The same rules do not apply if you decide to provide an area for the use of e-cigarettes. You will just need to consider where you site this area in relation to any smoking area.

One particularly robust option is to prohibit any type of smoking altogether in your workplace.

 

Non-smokers are complaining about the vapour from e-cigarettes in the office – what should we do?

The law does not stop you from banning the use of e-cigarettes at work. If you want to do this, it is best to have a written policy in place, so that there is no confusion over what is, and what is not, allowed. Any smoke-free policy, whether it extends to e-cigarettes or not, should apply to staff of all levels without exception and even to third parties such as customers, visitors and contractors.

 

Some of my e-smoking staff have complained that they don’t get as many breaks as tobacco smokers. What should I do?

As an employer, you are not obliged to allow smoking breaks in addition to the usual work-day breaks, and there is increasing evidence that they disrupt productivity and hinder performance.

If this is a problem for your business, you might wish to implement a policy that prohibits additional smoking breaks during the working day. This means that employees can only use e-cigarettes or smoke during their usual breaks and outside working hours. Some employers ask e-smokers and smokers to make up any time spent on additional breaks during work hours, but the success of this very much depends on the workplace environment, industry and culture.

If you would like to implement a policy for dealing with e-cigarettes in your business, get in touch and we’ll talk about how to build it into your employment contracts. Call us on 0118 940 3032 or email sueferguson@optionshr.co.uk.

 

Take Seven Steps to Improve Employee Performance – Part Three

Posted on by

In a previous blog we wrote about steps four and five of a seven stage process that you need to follow, when you want to improve performance in your business. Click here to read that blog again if you need a reminder. 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 click here for Part One and click here for Part Two. If you need some specific advice for your business and any of your members of staff, call us on 0118 940 3032 or email sueferguson@optionshr.co.uk and we see how we can help you.

Take Seven Steps to Improve Employee Performance – Part Two

Posted on by

Improving the performance of employees is something that all employers should be thinking about on a regular basis. But what happens when someone isn’t performing as well as they could be? What do you do when one person’s performance starts to affect the rest of the team?

There is a simple seven stage process that we recommend you use in these situations. Recently we wrote about the first three steps to look at – holding informal conversations, offering support and carrying out a performance review meeting. Click here to read about them again, or if you missed them.

Here are the next two steps of the process to follow.

Step 4: Make a Decision

Once you’ve carried out the performance review meeting with your employee, you need to make an informed decision about the action you need to take, in order to improve their performance. Take your time in reviewing the situation and don’t be too hasty to make your decision. Consider all the facts and the situation.

It could be that you need to provide your employee with a clearer job description and expectations for what you want them to achieve. They might need training in order to be able to carry out their job to the standard you expect. In the worst cases, you might need to give them a warning about their performance and explain how you want the situation to improve.

Step 5: Inform Your Employee of Your Decision

Make it completely clear what decision you have made, following the meeting with your employee. Telling them face to face is usually the best way to do this, as it allows further discussion. You should also put your decision in writing, so that there is a record of your decision on file, should any issues arise later.

At this stage, it is also vital that you agree the next steps with your employee. What actions do you want them to take and by when? Explain the goals you want them to achieve, or tell them about the training you need them to undertake. Again, make sure everything is in writing.

There are two more steps that you need to follow, in order to fully tackle performance issues. We’ll cover them in a future blog. If you can’t wait until then and you have employee issues that you need to deal with now, don’t leave them to escalate. Contact us on 0118 940 3032 or email sueferguson@optionshr.co.uk for some help and advice.

What is the Role of Employers in the Tax-free Childcare Scheme?

Posted on by

As an employer, you are not obliged to play a role in the Tax-free Childcare scheme as the scheme will operate directly between parents and the Government. Parents will be able to set up and pay into their own childcare accounts online, which the Government will then top up at the rate of 20%, up to an annual limit of £2,000 per child (or in the case of a disabled child up to £4,000). However, employers can choose to play a voluntary role by providing employees with information on the scheme and/or by paying into employees’ childcare accounts.

However, employers can act as a source of information on the scheme, for example by referring employees to the Government web portal for advice. A useful time to provide this information may be prior to, and on return from periods of family-related leave. This option may appeal if you do not currently offer employer-supported childcare (i.e. childcare vouchers or directly contracted childcare.)

You can also choose to pay into a childcare account for your employees, if you wish to. This could be done by facilitating payment into the childcare account on behalf of the employee. Under this option employers make the payment into the childcare account directly from the employee’s net pay via the payroll system. Alternatively, you may choose to make additional payments into childcare accounts without an employee’s net pay being reduced. In this case, the additional payment you make will be classed as earnings and subject to appropriate tax and national insurance deductions. Instead of making a series of smaller payments, employers will also have the option of making one bulk payment.

Should you choose to take up a payment role within the scheme, you would not be required to take on any wider responsibilities such as checking an employee’s eligibility for Tax-free Childcare. This would remain the Government’s responsibility.

The Government has said that Tax-free Childcare will be introduced in autumn 2015 and we’ll bring you more news when we have it. Do contact us in the meantime, if you would like to discuss this issue in relation to your business.

How to Handle Bank Holidays

Posted on by

Employers run the risk of a holiday ‘giveaway’ if they don’t check their employee contracts when it comes to annual leave.

Some employees are set to gain additional annual leave due to the days on which the Easter bank holidays fall this year, next year and in 2017. The wording in some employees’ contracts could land employers with an unanticipated liability for paying additional holiday, as a result of variations in Easter dates.

The issue will affect employers that operate an annual leave year that runs from 1 April to 31 March, and that set out their employees’ paid annual leave entitlement using wording along the lines of “20 days’ holiday plus bank holidays”.

Under working time rules, employees are entitled to a minimum of 5.6 weeks’ annual leave, or 28 days’ leave per year for employees working a five-day week. The 28 days can include bank holidays, of which there are usually eight per year.

The way in which the 2015 Easter break fell meant that, in England, Wales and Northern Ireland, there were bank holidays on 3 and 6 April. In 2016, the bank holidays are earlier: Good Friday on 25 March and Easter Monday on 28 March. However, in 2017, Easter is later, with Good Friday falling on 14 April and Easter Monday on 17 April.

This means that two Easter breaks fall within a holiday year running from 1 April 2015 to 31 March 2016: the Easter break that fell early in April 2015, and the Easter break falling in late March 2016. Affected employees will gain from two additional bank holidays (on top of the usual eight) for the leave year.

Failure to honour a contractual clause providing for “20 days’ holiday plus bank holidays” will result in the employer being in breach of contract, regardless of the fact that there are more than the usual number of bank holidays.

For a holiday year running 1 April 2016 to 31 March 2017, employees would appear to lose out. There is no Easter break during the whole of the annual leave year, meaning that they will be entitled under their contract to just 26 days’ leave.

As an employer you should not rely on a bonus in holiday entitlement from one leave year to be ‘evened up’ by giving employees less than the statutory minimum in the next leave year. The 28-day entitlement is a statutory minimum and you cannot negotiate out of it, other than by an agreement with your employees to carry forward up to eight days’ holiday into the following leave year.

If you’re not sure what you need to do to avoid being in breach of your employee contracts, contact me on 0118 940 3032 or email sueferguson@optionshr.co.uk and we’ll help you work out the numbers.

Holiday Commission Payments – The Verdict

Posted on by

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.

Improving Performance Through a Probation Period

Posted on by

Taking on new members of staff for a growing business can be a costly and time consuming process – especially if you get it wrong. Finding the best person for your business is important, and many people think that they can sit back and rest once their new recruit arrives on their first day. But that’s just the start of it!

This blog looks at how to give your new employee the best start with your business.

You worked hard on crafting the best Job Description for your new team member. The adverts went out and the applications came in. You spent time interviewing potential candidates to join your team. Finally you found them – the perfect person to work with you. They even turned up on their start date. What happens next?

If you think you can just sit back and expect your new recruit to get on with their job and perform as you expect them to – with no input from you – you’ll be disappointed.

The first thing to do – even before a new employee joins you – is to decide on the length of their probation period. This could be between three and six months, depending on the type of work being done. The probation period is your chance to start assessing your new recruit; it’s their time to find their feet and get used to their new role. It is a vital tool in measuring the performance of a new employee.

Next you need to plan when you’re going to review their performance, during the probation period. Planning a review halfway through is a good idea – don’t leave it until the end. This allows you to take action if you’re in any doubt about their ability to do the job for which you have employed them. Their performance will only get better if you do something about it. They might not have understood the job that you need them to do, so this is the time to go over what you expect from them. It’s also a good time for them to air any concerns they might have about their future with you.

You should next plan to review the performance of your new recruit before the end of the probation period. This could be after five months, if the probation is six months in length. This gives you time to properly review their performance and plan any action that needs to be taken – such as training or development. This will put you in the best position to be able to confirm whether or not your new recruit will be staying on.

If you decide that they will not remain with you, and your employment contract is correctly worded, the notice period for a new employee is usually less than for someone who successfully completes a probation period. If they have to leave, you can quickly turn your attention to finding a better person to fill their role.

There is no legal requirement for using a probation period at the start of an employment contract. However, it is a very good way of making sure you get the right person for the job, after all the time and effort you put into the recruitment process. Just make sure that your employment contract explains all this and that you discuss the use of the probation period with anyone to whom you offer the job!

Workplace Pensions are Here – Act Now, it’s the Law

Posted on by

Even if you employ just one person, you must provide a workplace pension.

Small employers are being warned to act now to ensure they are ready to meet their new workplace pension duties which will soon apply to them.

All employers have a legal duty to automatically enrol certain staff into a workplace pension scheme by a deadline that is specific to them. Automatic enrolment is automatic for workers but not for employers.

It applies to all small businesses, even those with only one member of staff – from dry cleaners, to florists, to newsagents and pubs.

Around half of employers who had thought they would be ready to meet their duties on their staging date found that they were underprepared and had a last minute rush to get finished. Research by The Pensions Regulator has shown that 40% of really small employers (those with less than 4 workers) do not know their staging date.

It is vital you do not guess your staging date – use the staging date tool on The Pension Regulator’s website, which only takes a few minutes (you will need your PAYE).

The experience of thousands of employers who have been through the process now is that automatic enrolment takes longer than they expect to prepare for – the regulator recommends making a start 12 months beforehand.

Don’t get caught out. Start your preparation early.

Useful links:

Tools to get you started: www.tpr.gov.uk/employers/beginners-guide-to-auto-enrolment

The essential guide to automatic enrolment: www.tpr.gov.uk/ae-essential-guide

Find out your staging date: www.tpr.gov.uk/staging

Nominate a contact: www.tpr.gov.uk/nominate

Planning tool: www.tpr.gov.uk/planner

6 month checklist: www.tpr.gov.uk/six-month

Subscribe to TPRs news by email: www.tpr.gov.uk/subscribe

Or click here to download a PDF of the The Essential Guide to Automatic Enrolment from the Pensions Regulator.