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Can You Turn Christmas Tunes Into HR Policies?

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As it’s December and because I always write something a little light-hearted for the festive season, this year I’ve chosen some Christmas songs for you! I hope you enjoy how I’ve managed to turn them into HR policies.

Here is the Christmas Top Ten:

Providing tidings of comfort and joy on your business travels far and wide, you are allowed up to £XX per evening meal and a hotel room with breakfast in one of our preferred hotel chains. If you need to stay in Bethlehem, we know of a good Inn where you can sleep in a perfectly comfortable manger. But please don’t feed the oxen.

When the weather outside is frightful, we ensure the car parks and pathways are all gritted. The lights are turned down low to help you see your way safely in the snow. Let it snow, let it snow. There will be no corn for popping for health and safety reasons.

We want you to let your hearts be light and to be a little merry at Christmas, but please drink responsibly. We also believe in making the Yule-tide gay for all, in an accepting and inclusive way in order that our troubles will be miles away.

We don’t want a lot for Christmas, there’s just one thing we need. And that’s your attendance during normal office hours after the Christmas party. Please make our wish come true. All we want for Christmas is you. Anyone calling in sick the next day may be disciplined. Baby.

Please remember to keep your personal mobile phones on silent during working hours. Employees need to work in heavenly peace where all is calm. If your mobile does ring during office hours, you will receive a heavenly HR host singing ‘Alleluia’, and it will not be radiant or glorious. 

If anyone is seen kissing anyone under the mistletoe, let alone Santa, they will be disciplined. We do not encourage personal relationships, even if it is only tickling under a snowy white beard. 

We do not tolerate bullying. A colleague may have a very shiny red nose, but there is no excuse for laughing and calling him names. We are an inclusive and caring company, respecting the differences that everyone gives from all nationalities, ethnic backgrounds, sexualities and religions. Therefore, a nose so bright can guide others through the fog and snow.

On the occasions when your hardware or software needs attention, please see the big man in a chair with little tiny men everywhere. He’s the man with all the toys … err, equipment and IT knowledge. 

Your company car is for business use only. However, you are permitted to drive home for Christmas, to see those faces. You will be there. If you run a red light or any other motoring offence, you will have to pay the fine and have the points on your licence. Safe driving in (y)our car.

When a new-born king … err, supplier … comes to visit offering their finest gifts, it is our policy to respectfully turn them down. Gifts could be perceived as bribery. Rum-pum-pum-pum, rum-pum-pum-pum. Years from now, perhaps we’ll see the day of glory where we can work in peace – without the gifts. Rum-pum-pum-pum, rum-pum-pum-pum.

We hope you enjoyed both the silliness and the links to the real songs. If you need any serious HR advice over the festive period, please do get in touch.

Wishing you a very merry Christmas and all good wishes for a prosperous 2020.

Managing Musculoskeletal Disorders at Work – Part One

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Did you know that 24 million days are lost to ill health each year? Out of that, the breakdown includes 10.5million from stress related illnesses, and a staggering 9.5 million from musculoskeletal disorders.

At my last Workshop in October, Jenny Collis of the Fit & AbleWorkplace did a presentation on managing musculoskeletal disorders (MSD) in the workplace. From that, Jenny kindly allowed me to write this blog to help you manage MSD in your business.

MSDs are injuries and disorders that affect the human body’s movement or musculoskeletal system (i.e.muscles, tendons, ligaments, nerves, discs, blood vessels, etc.). In the workplace, there are a number of situations that can cause MSDs, especially where repetitive movements are necessary, as in a factory setting, or when sitting for long stretches of time at a workstation. Note – don’t sit for long! Get up regularly and walk around for a few moments.

Because this is quite a lengthy subject, the second part will be published in January 2019. This blog focuses on the following objectives:

  • To discover how MSDs are identified, reported and managed
  • To help you review provisions for DSE (Display Screen Equipment) assessment asrequired by Health & Safety legislation, and to ensure that they are appropriate for changes in technology and flexible working practices
  • When to seek external specialist support and what to expect

Identifying and Reporting of MSDs

As an employer, you need to comply with the Health and Safety (Display Screen Equipment) Regulations 1992, which was amended in 2002 for office-based computer users. This means that you need to check that the whole workstation – including equipment, furniture and the conditions – are set up correctly, correcting any risks, to ensure that each individual employee is positioned in an ergonomically correct way that’s also comfortable for working efficiently.

Assessments need to be carried out regularly, especially when a new employee starts work. Therefore, it’s important that the staff you nominate to carry out assessments are properly trained to correctly assess workstations and other areas.

Of course, these days there are huge workstation variations within different organisations, especially with all the different technologies around. For instance, many people use iPads and smartphones as much as, and sometimes more than, desktop computers and laptops. So when assessing workstations, it’s important to take consideration of all the different working possibilities.

Information sheets are available from Fit & Able Workplace to help your designated staff to assess and advise,such as:

  • Top tips for using a computer including some simple exercises
  • How to use a mouse and keyboard correctly
  • How to take the pain out of driving

Considerations also need to be made for flexible workers, hot-deskers and so on, as well as manual workers and production workers.

Remote Workers and Using Specialist Services

It’s also important to assess remote workers regularly, both the vehicles they use if they’re on the road a lot (as many sales forces tend to be), and/or their workstations at home.

It could be that some of your staff have medical conditions that they are reluctant to report on, so it’s important to help them to understand that they will be supported to keep their jobs and carry out their roles comfortably by putting some simple exercises or changes in place that will help them. For instance, ensuring that regular breaks are made in order to do some stretches or walk around for a few moments, as advised by the assessor. If you need to request letters from their GP or other medical practitioners about their condition, an external DSE specialist may be necessary.

Ergonomic Workplace Assessments

You may feel that it’s simpler and safer to use specialist services. If so, this is what you can expect to receive:

  • One hour on site with each user
  • Discussion of medical conditions and clinical management
  • Discussion of their work role, including all routine and external work factors
  • Observe the user undertaking their work, using knowledge of musculoskeletal disorder to identify the aggravating factors in and outside of the workplace
  • Provide advice and training to the user and implement solutions where possible
  • Provide a comprehensive report to you with findings, advice given, solutions implemented and any employer recommendations.Where equipment is suggested, generic recommendations are provided with examples of appropriate equipment. Quotes from suppliers can be provided withassessor discounts incorporated or equipment can be purchased from preferred company suppliers
  • All compliant with GDPR

Naturally, you can have your own trained staff carry out these assessments, certainly on an initial basis and unless a complication or riskarises that needs expert assessment. It’s also advisable to contact a specialist before purchasing new equipment or furniture, to ensure it is correct for the situation.

In January’s blog, we will focus on:

  • Clarifying what actions can be taken in-house by H&S trained staff, with tips and advice on simple solutions for both the workplace and remote working situations
  • More information on when external expert help is required

In the meantime, if you have any queries on MSDs and helping your staff to work comfortably and safely, or any other staff issues, do call me on 0118 940 3032 or click here to email me and I’ll refer you to Jenny at Fit & Able Workplace if needed.

‘Tis the Season of Abundance and Joy!

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Christmas parties can be a mixed blessing. They’re good to help both keep morale high and reward staff for a good year. But parties are not always without their problems– you can’t totally control all your staff, especially after a drink or two! Also,not everyone likes parties, so don’t make them compulsory, as some people find social situations too overwhelming.

Costing on average around £50 per head, produce an Office Party Policy to set expectations on behaviour, backed up with a Social Media policy warning staff not to post inappropriate photographs and risk damaging your brand’s reputation. Email all staff a couple of weeks prior to the event, attaching the policies, to bothremind them of the details of the party and your expectations of theirbehaviour, gently stating that the party is an extension of their working hours.

Remember, as the employer, you’re ultimately responsible for any shenanigans! So to avoid any pit falls and embarrassment, set up the ground rules first. Then relax and enjoy the event with your staff.

The ‘Alternative’Festive Menu

Cocktails and Wine

Can you guess which member of staff will be the one who gets a bit tipsy first?There’s always that one! Then there’s the wine lover who ends up getting a bit emotional, and the beer quaffer who may get opinionated, offering unwanted advice to all and sundry. Not forgetting the cocktail lover who thinks they’re the life and soul of the party! You know the ones. But we’re all human, and we all have our little foibles, whether alcohol induced or otherwise. So let themenjoy themselves, in moderation – you, too. Relax and enjoy a glass or three. Just remember not to make any drunken promises to your staff that could bite you in the backside later. Finally, make sure you have plenty of soft drinks available,too.

Your Starter for Ten

Everyone loves a traditional prawn cocktail or salmon starter. Or do they? Perhaps a member of your team is allergic to shellfish. Remember to check for allergies prior to the event.

Going Crackers

No Christmas meal is complete without pulling crackers, donning hats, enjoying the cheap gifts and laughing at the lame jokes. But once the crackers are pulled, keep an eye out for staff going crackers, or flirting inappropriately to try and ‘pull’ a colleague. Gentle flirting is one thing, but let’s keep it atthat, guys! Your policy should remind staff that what one person may find funny,another may find offensive – the last thing you want is a grievance about someone’s behaviour when you all return to work.

What a Turkey!

Onto the main course. Things are getting serious now … or seriously silly! But when it comes to the meat, consider those people of different faiths. Have you ensured there are Halal or Kosher choices, and vegetarian alternatives? Did you check that anyone has any other dietary needs? For the meal to be a success,and for your staff to feel appreciated, valued and listened to, getting this bit right is essential.

Brussels Sprouts – Loathe ‘em or Love ‘em?

I love Brussels Sprouts, especially stir-fried with garlic, chilli and ginger. But not everyone does. The point I’m making here is to not treat everyone the same and assume they all want or need the same thing. I’m not just talking about the festive season, either – don’t look at your staff as a whole but see them as individuals, too, with different needs. 

Christmas Pud with Lashings of Brandy Butter

Of course, some people may prefer mince pies, and others may loathe desserts with dried fruit. Ensure there’s a variety of desserts available so that people don’t feel left out – just as can happen with equality issues in the workplace.It’s important to cater for and embrace all desserts, tastes, ethnicities and sexual preferences so that everyone feels included.

Secret Santa

Many people love the secret swapping of silly gifts at Christmas. But what happens when someone opens a present that they find inappropriate, or worse still,offensive? Make sure you communicate with staff well in advance of the event. Make it clear that if they want to take part in the Secret Santa, gifts should be respectable and sensible. This can be subjective, of course, but most people should understand the sort of gifts to be avoided.

Taxi!

It’s over! Everyone’s talked, eaten, laughed, joked, enjoyed a tipple or two and hopefully had fun. Now it’s time to get everyone home safely. Did you know that it’s your responsibility as the employer to ensure that drunk staff get homesafely? If budget allows, arrange mini-buses or taxis in advance, or designated drivers for groups. Or at least encourage your staff to check the last bus andtrain times and provide the number of a couple of cab companies.

Finally,if you’ve chosen to have your Christmas event mid-week (not advisable), make sure that everyone had plenty of prior warning that they are expected in work the next day, fully functioning!

Wishing you all a very Merry Christmas and a peaceful New Year!

Since GDPR, How Do You Respond to Subject Access Requests from Employees?

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Since GDPR, How Do You Respond to Subject Access Requests from Employees?

Whatever the size of your business, you probably process significant amounts of personal data on clients and employees. The sensitive nature of this data means that you are bound by the legal rights of the data subjects, which includes their right of access to their personal data.

Sometimes referred to as SARs or DSARs, this guide explains your employees’ rights on making a Subject Access Request under GDPR, how they differ from the previous rules under the Data Protection Act 1998, and the processes required to effectively deal with them. The process is the same for requests received from other workers, or job applicants requesting personal data gathered during recruitment.

Key Changes Under GDPR

Subject access rights under GDPR are slightly different from those under the Data Protection Act 1998. For example:

  • Employers must provide additional information – envisaged data retention periods, and information about employees’ rights to have the data rectified, erased, or to object to the processing
  • Previously, SARs had to be in writing. Now, verbal requests are possible
  • Previously, you could charge a £10 fee for responding to a SAR. Now, you cannot charge unless the request is manifestly unfounded or excessive
  • Before, response time to a request was within 40 days of receipt. Now, you must respond without ‘undue delay’ and within one month of receipt (extended to three months for complex requests)
  • The maximum fine for non-compliance on responding to a SAR has increased significantly from £500,000 to €20 million, or 4% of the undertaking’s total worldwide annual turnover if greater. However, the Information Commissioner’s Office (ICO) has emphasised that it intends to continue to use its powers to impose fines “proportionately and judiciously” and regards issuing fines as “a last resort”

Subject Access Rights under GDPR

When responding to a SAR, you must provide the employee with the following information:

  • The purposes for processing the data
  • The categories of personal data you process
  • The recipients, or categories, to whom the data is disclosed (especially if outside the European Economic Area (EEA))
  • How long you will hold the data
  • The employee’s right to request rectification or erasure of data, and to restrict or object to processing
  • The employee’s right to complain to the ICO
  • The source of any data not provided by the employee
  • The existence of any automated decision-making (including profiling), the logic involved, and the envisaged consequences of such decision-making for the employee
  • The safeguards provided for the transfer of data outside the EEA (if relevant)

If a SAR is manifestly unfounded, excessive or repetitive, you can charge a reasonable fee for administrative costs or refuse to act on the request. But you must tell the employee, without undue delay and within one month of receipt, why you are not responding to the SAR and of their right to complain to the ICO and/or a court. If you are challenged, you will need to demonstrate your reasons.

Policies and Procedures

You should already have policies in place to guide both employees and managers on dealing with SARs; use the following to update them.

  1. On receipt of a SAR, assess whether the request is complex. With the volume and sensitivity of employee data typically held they may be complex, needing an extended three-month time limit. If so, notify the employee with the reasons why within one month of receipt of the request. Keep the employee informed throughout – regular communication helps reduce the risk of employees complaining to the ICO.
  2. Identify where the data is being stored, both electronically and manually. This may include the HR team, the line manager and the IT department. Your policy should specify the timescale for them to provide the data for review, including by legal advisers if necessary, before the SAR response is due.
  3. Employees responsible for dealing with SARs will need training.

Identifying SARs

Your data protection policy can specify how employees should submit SARs, which will help to identify them. However, an employee can still submit a SAR in some other way, including verbally or even via social media, which you should then confirm in writing; it’s important to regularly monitor all channels of communication.

Legally, there is no prescribed format for a valid SAR under GDPR. It simply needs to ask for copies of their personal information. For example, a request for “a copy of all information that you hold about me” or “all information relating to my recent grievance” will be a valid SAR.

You are not required to comply with a SAR if you cannot verify the identity of the individual making the request. It could be a previous job applicant, and you may need to check the individual’s identity before disclosing personal data – a copy of a utility bill should suffice.

Clarifying and Searching

Most SARs ask for “all information that you hold about me”. The ICO regards an individual’s right to access their personal data as fundamental. However, in some circumstances it may be possible to show that the employee’s request would require taking unreasonable steps.

Initially, discuss the scope of the request with your employee; you cannot ask them to limit the scope, but you can ask for further information to help locate the personal data. For example, if the employee is seeking personal information contained in emails, you could ask them to identify which email accounts should be searched, or parameter dates. Engaging with the employee about their request, even if they refuse to cooperate, may help your case should they later complain to the ICO.

The ICO’s Subject access code of practice may be of help.

Carrying out regular data audits to record where data is stored is beneficial, especially if third parties are involved, such as cloud based databases.

Searching email systems for personal data can be onerous. Ideally, set up your systems to simplify locating information. You may need to search local computer drives (such as the employee’s line manager) for personal data – your policy should set clear rules on the storage of employee data on personal devices.

Paper archives should also be searched. To save time, liaise with the employee to agree the search parameters.

Data Exemptions

If the employee’s personal data is mixed with that of other people, assess whether to disclose such third-party data. The Data Protection Act 2018 contains exemptions to some data types, including:

  • Confidential employment references
  • Personal data processed for management forecasting or planning if disclosure would prejudice the business (e.g. reorganisation plans)
  • Records of your intentions in relation to negotiations with the data subject if this would prejudice the negotiations
  • Information subject to legal professional privilege

Providing the Data to the Employee

The GDPR recommends that personal data should be provided via remote access to a secure system. Alternatively, provide the response electronically (unless otherwise requested) with password-protected documents, portable hard drive or USB device. This is a significant change from previous practice, as employers used to provide hard copy data.

Explain what searches you carried out and why searches may have been limited, either because they would require disproportionate effort or because the data is too intermingled with third-party data. Explanations reduce the risk of complaints to the ICO.

For further advice on SARs or any other staff issues, do call me on 0118 940 3032 or click here to email me.

How Do You Deal with Poor Staff Performance?

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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.

Poor Performance – Can You Prove It?

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Sometimes as a manager you need to deliver bad news or negative feedback to a member of your staff. You might need to pick them up on an issue of performance that you’re not happy with, or where they are not meeting your standards.

This is not a comfortable thing to do. You need to be quite assertive about it, to be taken seriously, so that your member of staff doesn’t just argue with you! To help you discuss the issue in the right way, you need evidence of the poor performance. You have to be able to show your team member what they’ve been doing wrong or below standard. Just telling them that they’re not doing what you want them to do, won’t have any impact, if you can’t prove it.

You need to collect the evidence, so your team member can really understand what they’ve done wrong and how you want them to change. It’s not about collecting evidence just to use against someone – you really need it in order to get the message across and to make a difference.

Is one of your team repeatedly late coming into work? If so, you need a recording system that shows them when they came it late and how often it happens. If your staff clock in and out every day, you have your system. If not, you need to look for another way of recording the time.

Does a member of your staff keep making errors in their work? How many times have they made a mistake and what was the result of it? Again, you need to create a way of recording the error rate and the consequences.

Do some of your clients repeatedly complain about one of your employees? If so, you need to keep all the emails or letters of complaint that you receive. When a customer complains over the phone, ask them if they would mind emailing you the details for your records, so that you improve the situation for them.

When you can show proof of poor performance, it is much easier to discuss the issue with the particular member of staff and, between you, work out what needs to be done in order to improve their performance.

We discussed the importance of collecting evidence at one of my interactive workshops. Click here to watch the short video and find out more.

Dealing with Bullying or Harassment at Work

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Recently we looked at the case of one of my clients who had learnt about sexual harassment happening within their company. Click here to see that blog again, or if you missed it. Fortunately that case was successfully resolved, but if ever you need to go to the next stage with such a case, here is how you should deal with it.

Following investigatory meetings, which you must carry out, and assuming that you decide that there is a case to be answered, a formal disciplinary interview should be set up with the person accused of bullying or harassment. This should be done in writing, with your employee being given a full written account of the evidence gathered against them, including the evidence reported by any witnesses. Whether or not it will be appropriate to state the names of any witnesses will depend on the circumstances.

At the same time, the employee should be given notice to attend the interview and informed of their right to be accompanied by a colleague or trade union official. It is essential to provide the accused employee with all the relevant facts at this stage, so that they have a proper opportunity to defend themselves when the interview takes place.

Ask and Listen

At the interview, you should ask open questions, i.e. those beginning with “what”, “which”, “why”, “how”, “where”, “when” and “who”, in order to get the employee’s side of the story. You should listen carefully to what they have to say, and take on board their explanations and any mitigating factors.

The purpose of the interview will be to establish whether or not there are proper grounds for taking disciplinary action against the employee and, if there are, what level of disciplinary action would be appropriate. This will depend on whether or not, following the interview, you have reasonable grounds for forming a genuine belief that incidents of harassment or bullying did in fact occur.

There is no need for you to have absolute proof of the employee’s ‘guilt’ in order to proceed with disciplinary action or dismissal, as long as you have, following a thorough investigation, formed a genuine and reasonable belief that incidents of bullying or harassment took place.

Deal with it Promptly

Depending on the seriousness of the behaviour, disciplinary action may range from a verbal warning to summary dismissal. In cases of mild harassment, for example a single incident that was based on a misunderstanding, or a series of minor incidents where an employee genuinely did not realise that there were causing offence, a sincere apology, together with an undertaking not to repeat the offending behaviour, may be appropriate.

If the outcome is a formal warning or dismissal, the employee should be granted the right of appeal against that decision, to someone who was not involved in either the investigation or the decision to impose the disciplinary sanction. If a warning is given, it should make it very clear that any further incidents of bullying or harassment of any kind will be viewed very seriously and will lead to further formal disciplinary action.

Both the employee who raised the complaint and the employee accused of bullying or harassment should be given written feedback on the outcome and any actions agreed once the proceedings have been concluded. Full confidential records should be kept of all complaints, all interviews conducted and the outcome of the proceedings.

The main aim of any formal action will be to make sure that the harassment or bullying stops immediately and does not recur. This means that you should treat any report of harassment or bullying seriously and deal with it immediately.

I hope that you never have to deal with a situation like this in your business. However, if you are worried about harassment or bullying – either a case that needs to be dealt with, or how to prevent it from happening – please contact me straight away by calling 0118 940 3032 or by clicking here to email me.

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

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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?

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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.

 

Holiday Commission Payments – The Verdict

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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.