Tag Archives: HR advice

How Do You Investigate Staff Issues?

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If one of your employees raises a grievance at work, against one of their colleagues, you need to carry out an investigation into the situation, before you make any decisions. How do you go about doing this?

The first thing to consider is that the person against whom the grievance has been raised cannot carry out the investigation. Look for an impartial party to do it, who should decide what information they need in order to fully understand the situation. They should then interview the person who has raised the grievance, before speaking to the other party and anyone else involved. They should produce written evidence and be prepared to look for evidence both supporting the employee and against them.

All people involved should be asked not to discuss the allegation, or look for corroborating evidence or verification of what the employee and other staff are saying. They should also keep an open mind, as what they uncover may not be what anyone expects. For example, someone may be unhappy at work because of a family bereavement they haven’t told anyone about.

The next stage is to respond to the person who raised the grievance, with your decision based on the evidence. It may be appropriate to bring the two people together to discuss the evidence so that they can discuss the situation and plan how to resolve the situation. You must always respond to a formal grievance in writing, with your decision based on your investigation and offer the right of appeal.

The point of carrying out an investigation is so that you do not blunder into a grievance situation, without first finding out what is really going on. If you don’t have your own policy to follow, then use the guidelines published by Acas. As with most employment matters, following a clear process will keep you safe, if an aggrieved member of staff doesn’t like the way in which their grievance has been handled!

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!

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.

Settlement Agreements used to be called Compromise Agreements. What’s Changed?

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In the UK, a compromise agreement – now known as a Settlement Agreement – is a specific type of contract, regulated by statute, between an employer and its employee (or ex-employee) under which the employee receives payment in exchange for agreeing that he or she will have no further claim against the employer as a result of any breach of a statutory obligation by the employer.

Changes were made (other than just the name) in July 2013. What does this mean to you, as an employer?

A Settlement Agreement is a legally binding contract which can be used to end an employment relationship on agreed terms. Their main feature is that they waive an individual’s right to make a claim to a court or employment tribunal on the matters that are specifically covered in the agreement. Settlement Agreements may be proposed prior to undertaking any other formal process. They usually include some form of payment to the employee by the employer and may also include a reference.

For a settlement agreement to be legal, the following conditions must be met:

  • The agreement must be in writing
  • The agreement must relate to a particular complaint or proceedings
  • The employee must have received advice from a relevant independent adviser on the terms and effect of the proposed agreement and its effect on the employee’s ability to pursue that complaint or proceedings before an employment tribunal
  • The independent adviser must have a current contract of insurance or professional indemnity insurance covering the risk of a claim by the employee in respect of loss arising from that advice
  • The agreement must identify the adviser
  • The agreement must state that the applicable statutory conditions regulating the settlement agreement have been satisfied.

A Settlement Agreement can be proposed by both employers and employees although they will normally be proposed by the employer. A proposal can be made at any stage of an employment relationship.

Acas has produced a comprehensive Code of Practice on Settlement Agreements, which you can download for free here. It is very important to take HR advice before starting a process of discussing a Settlement Agreement with an employee so do get in touch if you have any questions.

The Next Round of Employment Law Updates

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The Next Round of Employment Law Updates

Just when you thought you knew everything you needed to know about employing staff, they changed the law! Here is a summary of some of the recent changes that you need to know about.

  • Tribunal penalties for employers – from 6 April penalties can be imposed on employers who lose tribunals. This could be 50% of the award between £100 and £5000 where the employer breaches the employee’s rights and where there are aggravating factors; or where the employer has not made a genuine mistake but has made a deliberate breach of the ACAS code. If you run a small business there is some leniency, but larger employers are expected to follow the new rules.
  • ACAS Early Conciliation – from 6 May, early conciliation is compulsory before a claim can be submitted. The claimant must contact ACAS, who will issue an early conciliation certificate when the process is complete. As an employer, this now gives you opportunity to get early warning of a case or to settle.
  • Statutory pay rates – from 6 April, maternity, paternity and adoption is raised to £138.18. Sick pay rises to £87.55 and gross pay for redundancy is £464.
  • Abolition of the percentage threshold – before 6 April employers could claim back sick pay if it exceeded 13% of the employees Class 1 National Insurance in the month. That threshold has now been abolished.
  • Abolition of SSP record keeping obligations – from 6 April there will be no requirement to keep specified records of dates of sickness and SSP payments. Before this there was a requirement to keep records for three years.

There are more changes proposed for later in the year, which I’ll tell about in future blogs. If you need to know how any of the changes specifically affect your business and your employees, do get in touch and I’ll talk you through what you need to know.