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Employment (Allocation of Tips) Act 2023

Tue, 24 Sep 2024 14:26:13 GMT

Is your business ready for the Employment (Allocation of Tips) Act 2023?

With effect from 1 October 2024 , it will become unlawful for employers to withhold tips, gratuities and service charges from workers. This was a Bill introduced under the Rishi Sunak Government. The rationale in its implementation was that the Sunak Government strongly believed that ‘tips, gratuities and service charges should go to workers, rather than employers. Tips are intended to reward staff for hard work and good service, and they should be distributed fairly and transparently’. So, from 1 October 2024, tips, gratuities and services charges will legally belong to the worker not the employer.

Q. So what do you need to do going forward?

A. Employers affected by the change, will be expected to:

Have a written policy
Keep clear written records of the tipping practices for a rolling period of 3 years

More information has been drafted and you can refer to the statuary code of practice for more information

https://www.gov.uk/government/publications/distributing-tips-fairly-statutory-code-of-practice

For more information contact:

Jane Southall on 07861 309 729 or email jane at jane.southall@searchlightels.uk

New Duty on Employers to Prevent Sexual Harassment in the Workplace

Tue, 17 Sep 2024 10:34:35 GMT

As workers are protected Under the Equality Act 2010 from harassment, including sexual harassment.

From 26 October 2010 , Employers will be under a positive duty to ensure they prevent sexual harassment in the workplace. This change will be known as the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act) .

The change means that employers need to anticipate the circumstances when sexual harassment may occur in the workplace. Employers are then expected to take action to prevent sexual harassment in the workplace. There are 7 steps recommended by the Equality & Human Rights Commission (EHRC) .

These are:

Step 1 - Employers will be encouraged to develop their anti-harassment polices

This will require employers to review their current policies and conduct a complete redraft after you have considered what preventative steps you have taken to prevent sexual harassment in the workplace.

Step 2 - Engage with your staff

Conduct meetings with your staff whether it’s onboarding employees with a robust induction including highlighting how your company has taken preventative steps or measures to prevent sexual harassment or conducting exit interviews, you will need to demonstrate how you went about engaging your workers with the new Preventative Duty.

Step 3 - Assess and take steps to reduce risks in your workplace

This means you need to consider the scenarios that could lead to sexual harassment whether that’s lone workers who could be at risk with clients/ customers or work events which take place at night or previous complaints of sexual harassment.

Step 4 – Reporting

Consider how complaints of sexual harassment can be easily reported – whether you engage an anonymous helpline or use an online portal which provides a level of protection. You will also need to consider training workers to recognise what constitutes sexual harassment.

Step 5 – Training

Workers should be trained on how to deal with sexual harassment in the workplace from other workers and third parties such as clients/ patients/ customers.

Step 6 – what to do when a harassment complaint is made?

In summary, this means dealing with the complaint promptly, ensuring the complainant is protected and does not suffer victimisation as a result of their complaint and communicating the outcome in a timely manner.

Step 7 – Dealing with Third Parties

Ensure you treat third parties such as clients, customers, patients or suppliers as seriously as you would treat a worker accused and investigated of sexual harassment.

Employers who fail to adhere and comply with the changes, employment tribunals will have the power to uplift sexual harassment compensation by up to 25 per cent where an employer is found to have breached the new duty to prevent sexual harassment.

Want to know more & how you can protect your organisation

Contact me below

Jane Southall

Mobile: 07861 309 729

Email: Jane.southall@searchlightels.co.uk

Should I Allow My Workers To Work A Second Job?

Tue, 23 Aug 2022 09:27:06 GMT

With the increasing cost of fuel whether that’s filling our cars or using gas and electricity at home, no one can deny that times are currently very hard. We are all feeling the pinch with the rise in the cost-of-living.

So, what do you do if you have a worker who is seeking to bolster their income with another job?

This depends on the contract you have with your staff and importantly the type of contract. If you have a clause in the contract which prevents your workers working for another employer (these are typically in contracts where the worker is full time), your employee will need to seek your express prior written permission. Where the contract with your worker is a zero-hour contract, you are prohibited as an employer from enforcing any clauses which prevents your zero hours workers from solely working for you: section 27 Employment Rights Act 1996. Where you dismiss an employee on a zero hour contract for working for another employer, this will be an automatic unfair dismissal for which there is no need for a qualifying period of 2 years. The same protection from unfair dismissal afforded to those on zero hours contracts is expected to be widened in 2022 to include contracts in which guaranteed income is lower than the Lower Earnings Limit (currently £123 per week). The proposals follow the conclusion of a government consultation launched in December 2020.

Where your employee is not a zero-hours worker and is struggling financially, it may be prudent to consider whether there is any overtime or short-term projects you would like to allocate to the employer to try and show support. Alternatively, if business finances permit, you may want to consider a review of their salary, with an incremental pay rise. The positive side effect is increased employee morale, loyalty and employee retention, rather than risk losing your employees to a competitor.

What do you do where you are an employer that can’t afford to support an incremental pay rise?

Where you have a clause preventing employees from working elsewhere for a second employer, you are entitled to rely on that clause. Afterall, employers don’t want their employees working for a competitor undermining the implied term of fidelity. Providing you have a well drafted contract which addresses restraints of trade and restrictive covenants during the employee’s tenure; you at least have some form of protection. However, where an employee approaches you about working for another employer, you will need to consider whether there is a conflict of interest and whether there is also the risk of confidential information being shared with the second employer. Ideally, you should sit down with your employee and explore how they would like to generate additional revenue and whether or not the second employer is a competitor? For instance, you should in theory, be more easily able to agree that they can work elsewhere if the second employer operates an entirely separate industry and area of skill to yours.

What about the Working Time Regulations 1998?

Under the Working Time Regulations (WTR), unless the worker has opted out, they should not exceed the number of 48 hours per week over a 17-week reference period. The 17-week reference period should not include annual leave or sick leave. It is calculated over the actual number of weeks they have worked. Workers can sign opt-out agreements but do remember this can be revoked at any time.

You also need to ensure that your employee is receipt of sufficient rest breaks if they are considering working between jobs. So, under the WTR , a worker is entitled to a rest break of 11 hours in any 24-hour period. Furthermore, under regulation 11 of the WTR 1998, a worker is entitled to at least one 24-hour period of uninterrupted time off work every week. The 24 hours must be consecutive but can run across two days.

So, before you have that all important conversation with your employee seeking a second job, you will need to consider:

Type of contract – zero-hour contracts prohibits exclusivity – and this will be an automatic unfair dismissal if you terminate the employment for this reason;
Whether there is a conflict of interest – is the second employer a competitor?
The welfare of your employees – will they be able to get a sufficient rest break in accordance with the Working Time Regulations?

Finally, if you are able to agree with your worker/ employee that they can take on another job, agree the terms in writing and ensure there is a date to review. Where the second job appears to be having an adverse effect on your business, again it would be reasonable to review those adverse effects and discuss with your employee what measures can be taken or whether it is in the parties’ best interests to continue.

If you require HR Support or would like to message me directly, you can get me on directly on

Jane Southall

Mobile: 07861 309 729

Email: Jane.southall@searchlightels.co.uk

On April 6th, the new Personal Protective Equipment at Work Regulations 2022 came into force; but what does this mean for you as a business?

Wed, 20 Apr 2022 15:35:55 GMT

In practice, the new regulations represent an amendment to the existing PPE Regulations, rather than a wholesale upheaval. There are no new obligations, instead they seek to extend the duties of

employers in relation to PPE by expanding the remit of workers to which the regulations apply.

Put simply, whilst employers have always had the duty to provide their direct employees with PPE, this duty will now extend to those working under a contract of service.

Companies must urgently engage in introspection and look at the relationship they have with casual

workers to assess whether they will be caught by the new regulations.

The previous position was that the duties upon employers relating to the provision of PPE to workers were found in the Personal Protective Equipment at Work Regulations 1992 and related only to “employees”. It did not attach any duties towards workers who are not “employees” of an employer.

For the purposes of these regulations, the relevant definition of ‘employee’ is as defined in the Health and Safety at Work Act 1974 s.53(1), namely “an individual who works under a contract of employment”. Conversely, the new Regulations have explicitly extended the existing range of PPE obligations beyond the traditional definition of employee to “workers”.

The relevant definition of “worker” for the purposes of these new regulations can be found in the Employment Rights Act 1996 which states:

“worker” means an individual who has entered into or works under (or, where the employment has ceased, worked under) —

(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or personally perform any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual…”

If you want more information on risk assessments or any health and safety matters contact Paul at Paul@searchlightels.uk .

The End of Self-Isolation Rules – How Does This Affect Employers

Mon, 28 Mar 2022 13:34:17 GMT

What has changed?

From 24 February 2022 to 31 March 2022 (the self-isolation transitional period), it is no longer a legal requirement to self-isolate if an employee tests positive for COVID-19. Although there is no legal requirement to self-isolate the public health guidance issued by the UK Health Security Agency, best practice is to stay at home, at least for a full 5 days. Employees may resume their normal practice when they have tested negative from day 5 onwards, for 2 consecutive days providing they don’t have a high temperature.

With the removal of the legal requirement to self-isolate, employees are no longer obliged to tell their employers of their COVID-19 status or the requirement to self-isolate.

The £500 self-isolation payment has also ended along with the removal of the qualifying days for SSP which ended on 24 March 2022. This means employees who test positive for COVID are not entitled from day one to receive payment for SSP.

Routine contact tracing has ended. Where a close contact has been in close contact with a positive COVID person, if they have been fully vaccinated, they are no longer required to self-isolate or test daily for 7 days.

Further advice on the current changes can be found here https://www.gov.uk/government/publications/covid-19-people-with-covid-19-and-their-contacts/covid-19-people-with-covid-19-and-their-contacts

What changes are happening from 1 April 2022

After the transitional period has ended, those with COVID-19 symptoms will not be required to stay at home or self-isolate. The move is towards ‘exercising personal responsibility’ and to show consideration towards others. Employers will no longer be legally obliged to explicitly consider COVID-19 in their risk assessments.

Free testing for COVID-19 with PCR and LFD will end for the public but will remain free for those working in health and social care settings. Separate guidance for employers working in these specific settings can be found here https://www.gov.uk/government/publications/covid-19-management-of-exposed-healthcare-workers-and-patients-in-hospital-settings

How should employers respond?

The removal of the legal requirement to self-isolate does not prevent employers from developing their own policies. Difficulties may arise where employees disclose that they have COVID but that they feel well enough to work. Employers have a continuing duty of care to ensure the health and welfare of all their staff. Therefore, where an employer has carried out an updated risk assessment taking into account vulnerable members of the workforce, it may be that it is reasonable to insist that an employee remains at home to prevent the risk of further infection to vulnerable members of the workforce. Difficulties arise when it comes to the issue of pay as there is an implied obligation to provide an employee with work and to receive their pay. This has to be balanced with the implied duty to provide a safe place of work which means making sure that workers are protected from anything that may cause harm, controlling any risks to injury or health that could arise within their working environment. The Health and Safety at Work Act 1974 imposes a duty on every employer to ensure as far as is reasonably practicable, the health and safety and welfare at work of all of its employees. This broad duty is underpinned by the Management of Health and Safety at Work Regulations 1999. Furthermore, under regulation 3 of the Management of Health and Safety at Work Regulations 1999, there is the requirement to carry out the risk assessment. Obviously working from home is a clear way of reducing the risk of infection, however, not all sectors are suitable (for working from home) or have this as a viable option. It may be that under section 64 the Employment Rights Act 1996 that medical suspension is an option. This is not a form of sick pay but applies where an employee is capable of work, nonetheless they have to be suspended because of certain risks to their health. This can be costly so employers may need to consider reviewing their self-isolation policies now.

If you need assistance or support with the redrafting of these policies, don’t hesitate to get in contact with me directly.

Jane Southall

Jane.southall@searchlightels.co.uk

H&S In The Work Place

Wed, 03 Nov 2021 00:00:00 GMT

HSE COVID-19 Spot Checks Continue

HSE is continuing to carry out spot checks and inspections on all types of businesses in all areas to support employers and ensure they are working safely to reduce the risk of coronavirus transmission.

If you receive a call, it is important that you act upon it.

Employers must still control the risks and review and update their risk assessment.

The latest advice on keeping workplaces safe will help you assess the risks and continue to reduce COVID-19 transmission.

Further information on the spot check programme is on their website see link below.

For more advice on Health & Safety in the workplace, please contact Paul Grimes at Searchlight Employment Law Solutions at paul@searchlightels.uk .

https://www.hse.gov.uk/coronavirus/regulating-health-and-safety/spot-inspections.htm

HSE COVID-19 Spot Checks Continue

Wed, 03 Nov 2021 00:00:00 GMT

If you receive a call, it is important that you act upon it.

Employers must still control the risks and review and update their risk assessment.

The latest advice on keeping workplaces safe will help you assess the risks and continue to reduce COVID-19 transmission.

Further information on the spot check programme is on their website see link below.

For more advice on Health & Safety in the workplace, please contact Paul Grimes at Searchlight Employment Law Solutions at paul@searchlightels.uk .

https://www.hse.gov.uk/coronavirus/regulating-health-and-safety/spot-inspections.htm

Hybrid Working – Points to Consider for Employers

Fri, 03 Sep 2021 15:45:09 GMT

As the Corona Virus Job Retention Scheme otherwise known as Furlough concludes at the end of September, employers may wish to consider the topic of hybrid working.

Hybrid working is otherwise known as blended working where employees who are able to carry out their full range of duties carry out those core duties from home as well as the office.

So, what do you need to know as an employer to avoid the pitfalls and get the best out of your employee for hybrid working?

1. Set out the written terms - First, make sure any agreement you have with the employee is set out in writing. A failure to set out an agreement in writing which leads to the employee undertaking hybrid working from the outset of the first lockdown may lead to a change in the contract due to custom and practice, creating more difficulties with getting the employee to return to the office.

2. Consider introducing Hybrid Working as a Trial First – when considering your agreement for hybrid working, decide whether this is permanent or still within the company’s trial stages. Decide how long the trial will be and whether there will be a need for further consultation or an extended trial.

3. Consider whether employees should be able to opt into the trial period for homeworking and what number of employees you are seeking to trial for the hybrid working. It may be that for practical reasons, you allow only a proportion of the employees to take part in the trial based on an application process or you consider rotating the employees who wish to opt into the hybrid working scheme.

4. Consider your reasons for Hybrid Working – do they fit the needs of the company i.e., will they help to retain talented employees, attract new talent and increase productivity?

5. Define which roles are suitable for hybrid working – and state which roles are not suitable for hybrid working i.e., receptionist on front of house, service sector and manufacturing sectors are not suitable where an on-site presence is required

6. Hybrid Working versus Flexible Working – even if you don’t have a hybrid working policy – your employee may submit a statutory request to work in this manner which is essentially a Flexible Working request. Make sure you can distinguish with your employee a request for statutory flexible working hours as opposed to a request to work on a hybrid basis. Do remember all employees who have 26 weeks continued service can submit a statutory request to work flexibly once in any 12-month period. This is no longer limited to parents and carers. You must therefore ensure you follow the correct process for considering a statutory request as distinct from a general application for hybrid working. Remember as an employer you can only refuse a statutory request for flexible working on one or more of 8 defined grounds. (For more information and guidance on managing a statutory request for Flexible Working Hours, please contact me directly).

7. Make it clear where the hybrid working can take place from i.e., not from overseas but within the United Kingdom. If your company is unaccustomed to employees working overseas, you will need to undertake some careful research as to whether there are additional tax implications for you and the employee and whether there are more complex employment rights if the employee is resident outside the United Kingdom. So, make it clear that employees should not undertake travel overseas unless prior written permission has been granted.

8. Requirement to attend site on days normally intended for home working – set out in your policy that the employee may be required to attend the office/ work site to either take part in training days, undertake inductions for new employees, deputise for absent employees; coach or supervise new incoming employees or employees with capability support required. Providing the employee has reasonable notice; there is an expectation that they will at times be required to be in attendance at the office when they would normally have been working at home.

9. Rejecting an application for hybrid homeworking – explain why the employee’s application has been unsuccessful examples, the job is not appropriate for hybrid working, the job requires continued or regular cooperation with colleagues, not satisfied that the employee can work well without supervision. When rejecting an application ensure the employee can appeal the decision.

10. Reiterate the need to guarantee company confidentiality of personal data and their responsibilities to ensure any personal data printed, is carefully retained and disposed of at the work site and not in domestic private bins. Remember any data not responsibly disposed of by hybrid working employees can result in complaints to the Information Commissioner’s Office for which you as the employer will be liable if you don’t have the necessary polices in place.

For more information on how to handle hybrid working or flexible working contact Jane on 07861 309 729.

Employer Obligations on Employees returning to work during COVID-19

Mon, 25 May 2020 10:39:07 GMT

Although the current furlough scheme has been extended until the end of July 2020, it has been extended to run again from August until the end of October 2020 at which point it is anticipated that the scheme will operate on a phased out part-time basis. In addition, some employers have been given the green light to allow employees to return to work where working from home is not entirely possible and it is safe to do so.

If you are an employer with employees who cannot work from home and it is safe for your your employees to return to work, here are some additional areas you will need to consider:

1. Check that your business is not listed as a business that should remain closed to the public. If you trade in breach of the regulations issued by the government, you risk a fixed penalty which will potentially increase if you fail to pay the notice or repeatedly do not comply. See the link for more information on which businesses must not open to the public https://www.gov.uk/government/publications/further-businesses-and-premises-to-close/further-businesses-and-premises-to-close-guidance

2. Carry out a COVID-19 Risk Assessment – the guidance issued by the government states that it is non-statutory guidance which should work alongside your existing obligations as an employer relating to health and safety, employment or equality rights. Therefore, although this is not mandatory the guidance issued by the government is a helpful tool to promote confidence in employees returning to the workplace. Carrying out a COVID-19 risk assessment provides a great opportunity to consult with the union, health & safety representatives or the workforce about what risks they may identify and what proposed safety measures the workforce or union may suggest in addition to your own measures to reduce the spread of COVID-19. Consultation with the unions or workers could take place remotely through the use of questionnaires and other forums such as Zoom or Facetime. Risk assessment should be kept under review and changed according to new developments and guidance.

3. Share & Publish the results of your Risk Assessment with the workforce - The government asks that you share the results of your risk assessment with your workforce. If possible, you will be expected to consider publishing the results on your website (and where employer has over 50 workers to do so) the employer is expected to publish this information.

4. Protected Disclosures – An employer who chooses to ignore the social distancing guidelines or fails to implement measures to reasonably safeguard the health and safety of their employees are at risk of employees making claims for protected disclosure or whistle blowing on the grounds of health and safety. Such claims if invoked at the employment tribunal can give rise to unlimited amounts of compensation for injury to feelings.

5. Remember there will be employees who have been identified by their GP and advised to self-shield either due to their age and or underlying conditions. It is important that where there are reasonable adjustments you can make to reduce the risk, that those employees are not exposed to any risk of contracting COVID-19 in the workplace. So, if arrangements can still continue for those employees to work remotely, they should do so. Additionally, risk assessments should be carried out for those employees who are high risk.

6. Discuss with staff how they might feel about a return to work. Question how they will manage to travel to work. For instance, do they have access to their own vehicle or will they be reliant on public transport. You will need to consider whether there should be staggered start times and the new rules and practices for immediate washing of hands before arrival at their desk. On the topic of desks where employees usually work within a pod of desks adjacent to each other, the employer should consider whether there should be less workers on a pod and avoid placing workers directly adjacent to each other.

7. You may want to consider a temporary variation of the employment contract. where there is no capacity to have the entire workforce return, more consideration should be made towards employees working from home. It may be that some employers consider the temporary variation of the contract so that the employee is working part time; subject to review in 6 weeks’ time

8. If you are opening the workplace again, consider during consultation with your employees whether they should take their own temperature before attending work each day so as to be aware of any unusual spikes in temperature. Although a high temperature can be gauged from feeling hot to touch on your chest or back, so you will not need to measure your temperature with a thermometer but it may be a useful recommendation for your workers, to safeguard their heath and the health of their families.

9. Remember; employees may not be able to return to work as easily as before, with schools currently only open to children of key workers. Whilst plans are afoot for reception, year 1 and year 6 to return, there will be workers who will still have primary care for their children which may have a disproportionate impact on single parents, who can no longer rely on grandparents who may need to self-shield. Therefore, bear in mind, those workers juggling home-schooling, childcare, homeworking and being a single parent.

10. Consider what PPE you might need before requiring employees to return. Will there be occasions when workers will need to be in close contact albeit for short periods of time? For instance, if you need to move the furniture around the office to ensure safe working distances, how will this be achieved if more than one person is needed to affect the move? Will you also need facemasks if you need to hold a meeting for a few workers in the board room? If you have a designated break area for workers to heat their meals and eat their lunches, you might want to review this and only allow employees to bring in ready made meals which can be eaten at their desks so as to avoid any build up of employees seeking to use the same appliances. The Department for Business and Industrial Strategy published guidance to help employers, employees and the self-employed understand how to work safely during the coronavirus pandemic, a list of various business and guidance on safe working in the workplace can be found here https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

How to Manage Employees During the Heatwave

Sun, 15 Jul 2018 00:00:00 GMT

The heat at work should also allow a consideration of whether or not to relax dress codes. Non-customer facing staff should be allowed some flexibility in the clothes they wear while at work. Formal workwear, although looking sharp in corporate marketing, is not the most suitable for ensuring people stay focussed in hot weather. Of course, it would not be necessary to allow beachwear and flip flops, but certainly an increase in “dress down” days will help to ease the burden of consistently high temperatures on staff. There is no obligation on employers to relax their dress code but even a concession to allow smart casual rather than suits and ties, will show employees that their employer has shown some thought to their comfort. Perhaps establish a summer dress code which can be reviewed at the end of each year to ensure the balance between smartness and comfort is maintained in light of changing fashion trends

More generally ensuring a supply of cold water/drinks keeps employees hydrated and shows employees that their employer does consider their situation. Check that windows can be opened to allow air to circulate and also that they are capable of being masked with blinds, so glare does not make desk screens difficult to read. Moveable desk fans are helpful for those seated away from windows and the small expense can go far in again showing employees that their employer does seek to minimise the impact of the prolonged heat. Finally, for workers outside, ensure they have been provided with the necessary sunscreen.

When the temperatures rise so too does the potential for problems in the workplace. Mix the heat with the World Cup and the number of issues can increase. On first consideration good weather and a sporting event should be positive for workplace morale. Whether celebrating victories or lamenting lost opportunities employees can bond, even those who share over a disdain for the world cup and perhaps prefer the relative merits of Love Island. Although anything that improves inter-employee relationships at no cost to an employer should not be missed, there are also the bear traps of lost productivity and drop offs in attendance and punctuality. It is up to an employer to navigate these difficult waters and get the best of one without losing all advantages gained through the other.

Perhaps the best place to start is temperature. There is no law stating what is a maximum temperature in the workplace, apart from that the temperature should be reasonable. What is reasonable for an employee undertaking desk work may not be so reasonable for employees carrying out repetitive physical activity. In addition, employees who are pregnant or who have a long term medical condition need extra consideration. Employers have a duty of care to employees over and above the fairly general directions of employment law. They have a duty to make reasonable adjustments for disabled employees. Therefore, risk assessments should be undertaken for employees who suffer disproportionately from the heat.

Those living in the UK are familiar with the refrain from train companies that leaves on the line or unexpected snow falls have interrupted the smooth running of services. This can lead to a drop-in punctuality for many employees, even though they do their best to arrive on time. Although these disruptions are expected in Autumn and Winter, it appears that the prolonged heat is affecting the transport infrastructure in England. The heat has caused the expansion of metal in rail lines which makes certain train speeds unsafe or even preventing the running of a train at all on that section of the route. It has also caused swing bridges to jam meaning that vehicle routes are blocked with the inevitable traffic jams in roads around the crossing. The impact on attendance and punctuality is obvious but it may be worthwhile checking exactly where the disruptions are locally. This will ensure employees are not taking advantage of word of mouth transport difficulties which in fact do not affect them at all.

By giving thought to how the workplace responds to the heat, will not only maintain productivity but also show employees that you value their comfort and will do your best to make a workday as pleasant as it can be, without relocating to the beach!

Are Disciplinary Hearings always necessary?

Sun, 15 Apr 2018 00:00:00 GMT

With any instances of repeat absences, find out if they were for a variety of unrelated reasons. If so, then the employee is not prioritising their work responsibilities and are more likely to attract a disciplinary sanction. If the absences are for child care problems or the medical requirements of a close relative, then an opportunity to make more reliable arrangements, which do not impose on their working hours, could be given before embarking on a disciplinary sanction. It is worth mentioning that the carers of someone who has a disability do have the protection of disability legislation, even if they themselves are not disabled. Caution is recommended in these circumstances which is why a fact-finding meeting is always worthwhile.

At the meeting consider the employee’s reaction to the behaviour you are discussing with them. Are they dismissive and not indicating they believe it is something serious? Or on the alternative, are they apologetic and do they accept their failings? The former reaction may be more likely to lead to repeat behaviour. Therefore, an appropriate warning would be a suitable sanction following a disciplinary hearing. For the latter perhaps, a letter confirming the issue you discussed and that if in future, certain standards of conduct are not met and there is a repeat incident, then formal disciplinary action will occur.

What the above shows is that a pause to investigate before embarking on a full disciplinary may save time and show your team that you are not an employer who immediately rushes to punish.

In all workplaces there will be occasions when you will need to address the problematical behaviour or conduct of an employee. This may relate to issues ranging from them turning up late or repeated sickness absences, right up to complaints they are bullying or harassing a colleague. Your immediate reaction is probably to look to your disciplinary procedures and seek how to apply an appropriate punishment. However, before you do it is wise to take a moment to ensure you are fully aware of your employee’s circumstances.

It would be a poor use of management time to go to the trouble of organising a disciplinary hearing when it turns out the employee has a perfectly reasonable explanation for their actions or inactions. An outcome of “no action” may be legally correct but the trust that exists between employer and employee may now be eroded. An employer quick to suspend and prepare to punish, will not create a reputation that they are someone who runs a stable and nurturing work environment. In an increasingly flexible and transparent job market, reputational value is a factor in whether the best individuals will put themselves forward as candidates.

So, what is the best response when an employee has said or done something that could breach your policies and procedures? The first step is to call them to attend a fact-finding meeting. You do not have to give them notice and they do not have the right to be accompanied. Ask them into a private area of the workplace and explain to them that a particular incident or concern about their conduct has come to your attention. They will then have the opportunity to confirm or deny the fact of the incident. More likely the incident has occurred, but the individual will be able to provide some context or explanation for their actions or involvement in it. It is these explanations which may comprise mitigating circumstances or suggest other lines of consideration before implementing the disciplinary process.

For an employee who has had repeat sickness absences, ask them if there are any underlying reasons for their “bad stomachs” or “terrible migraines”. For another who is the focus of complaints of bullying, find out how they interact with their colleagues. Is the bullying in fact articulated as a demand that a fellow worker completes their assignment with greater accuracy? Is it in fact their team leader who has not managed interpersonal relationships well and that employees have been left to sort issues out for themselves? Thus, although regrettable, there is more to the allegation of bullying than just malicious intent. Perhaps, the management of the team needs to be addressed.

When to Suspend an Employee

Thu, 15 Mar 2018 00:00:00 GMT

A court recently ruled as unfair, the treatment of a teacher suspended who was not given the facts of the allegations before suspension was declared. The employer argued they were following their default policy in situations of alleged misconduct but the court ruled that in this instance the policy resulted in unfair treatment.

The court said the employer should have put the allegations to the employee to find out any missing information that may have not been apparent in the initial allegation. The employee seen to “have their hand in the till” may have been given permission by a senior Manager to remove a certain amount of money of recompense so immediate suspension without speaking to the employee could cast unfair doubt on their honesty.

Going forward, when faced with possible misconduct the employer should first obtain what details it can before making any decisions. Then it should speak to the employee to tell them what has come to their attention. In light of the comments the employer should make a decision on whether suspension is appropriate in the circumstances. Can the employee be moved to a different location? Is the allegation of behaviour of an ongoing nature or is it a one-off incident which only just came to light and has no undermining effects on business or personal relationships in the workplace.? If the latter then the employee could remain in work while investigations continue. Should robust evidence of wrongdoing arise then the full range of penalty options would still be available to the employer without there being a suspension first.

Jamie Carragher, sports pundit and Michel Castellucci, pilot, are two individuals who, at the start of March would not have imagined their names could be linked in an employment law article. However, in last couple of weeks both have been suspended by their employers due to conduct widely reported in the media.

It may be recalled that video footage emerged of Jamie Carragher spitting at a man and his daughter after a football match. In the skies at 30000 ft, somewhere between Paris and Madrid, Captain Michel Castellucci uploaded pictures of himself in the cockpit of his passenger jet interacting with animated characters created by a phone app. In both cases each was suspended pending further investigation. This would seem an uncontroversial response by their employers, but one that needs to be approached with care.

Historically the immediate response to any incident of possible misconduct was to suspend on full pay pending investigation and possible disciplinary. The employee was removed from their working environment and told not to contact colleagues or enter company property unless instructed. This would be confirmed in writing. Where an employee’s conduct is such that they are putting their colleagues or themselves at risk of injury, for example by fighting, threats of violence or obvious intoxication, then suspension is a reasonable response. However, in less obvious situations courts have ruled that employers should be more circumspect.

Letters of suspension often echo the statement found in Company Handbooks and Human Resources textbooks and state “suspension is a neutral act and does not indicate the perceived guilt of the employee”. This was because it was felt that employers could only invoke a summary dismissal if there was first a suspension.

However, in reality suspension can be viewed in a more judgemental way from colleagues of a “no smoke without fire” mindset. This is why, no matter how fairly an employer wishes to act, there needs to be a common sense attitude that simply following a HR playbook without thought of the context my result in less than fair treatment of an employee.

Whenever an incident of possible misconduct comes to the attention of an employer they should first have a meeting with the employee involved. This fact finding meeting should put the outline of the situation as the employer understands it to the employee and allow them to comment.

GDPR what you need to know and how this affects your Business

Thu, 01 Feb 2018 00:00:00 GMT

I am only a small business employing less than 20 people, why should I be concerned?

If you process personal data, you are expected to comply with the GDPR regardless of the size of your business.

What immediate steps should I take to get ready?

Although not mandatory for every organisation, it would be prudent to nominate a responsible person to undertake the role of a Data Protection Officer (DPO). This person will conduct the necessary privacy impact assessment if necessary for your organisation. Article 37(1) of the GDPR requires the designation of a DPO in three specific cases:
- (a) where the processing is carried out by a public authority or body;
- (b) where the core activities of the controller or the processor consist of processing operations, which require regular and systematic monitoring of data subjects on a large scale;
- (c) or where the core activities of the controller or the processor consist of processing on a large scale of special categories of data.
However, any organisation can appoint a DPO to act as a contact point for Data issues.
As well as nominating a DPO, ensure key people in your organisation are aware of the GDPR and the obligations;
Review the current security of your personal data, who has access to it and how safely this is stored;
Review how you seek consent from employees or job applicants.
Consider how long you need to retain personal data and whether or not you should be erasing personal data which is of no longer any value to the parties.

What is the deadline for compliance?

25 May 2018

What is GDPR?

GDPR is the General Data Protection Regulation. The GDPR will involve substantial changes to the Data Protection Act 1988 (DPA 1988). It will result in the repeal of Directive 95/46/EC, the Data Protection Directive which will no longer exist following the implementation of the GDPR.

How does GDPR affect me as an employer?

From an employer’s perspective, one of the major changes involves how you seek record and manage consents for employees and for job applicants’ personal data. You will need to review your policies to ensure they are compliant with GDPR. This means you will have to draft a Data Protection Notice and seek informed consent from your employees and job applicants. A Data Protection Notice will include key information to employees and job applicants for instance: how you store their data, how they may access their data, how long you keep the data, how you keep such information secure and how they may complain if the storage and processing of their data is wrong.

What is ‘Personal Data’?

‘Personal Data’ under the GDPR means any information relating to an identifiable person who can be directly or indirectly identified in particular by reference to an identifier. So, what does this mean? Well, it applies to a wide range of personal identifiers constituting personal data, including name, identification number, location data or online identifier, reflecting changes in technology and the way organisations collect information about people.

The GDPR also applies to both automated personal data and to manual filing systems where personal data are accessible according to specific criteria. This could include chronologically ordered sets of manual records containing personal data.

Personal data that has been pseudonymised – e.g. key-coded – can fall within the scope of the GDPR depending on how difficult it is to attribute the pseudonym to a particular individual.

Pursuant to Article 9, personal data also includes data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person's sex life or sexual orientation.

What happens if I don’t comply by the deadline?

A failure to comply with the GDPR may have major consequences for employers. Under the Data Protection Act 1988 the maximum fine the ICO can impose a fine of £500,000 to Data Controllers. Under the GDPR the fine is divided into 2 levels. Level 1 the ICO can impose a fine of up to 10 million euros or 2% of annual global turnover or whichever is the higher. For more egregious breaches under level 2, the ICO impose a fine of up to 20 million euros or 4% of annual global turnover whichever is higher. It is important to note that whilst compliance is important, where there is a breach, fines are not mandatory but discretionary and will be imposed on a case by case basis. There will also be a range of sanctions designed to motivate compliance such as warnings, reprimands, and corrective orders which will not carry a financial penalty but may harm the reputation of a business.

Are there any changes to how you must respond to data subject access requests?

Yes, under the GDPR, you no longer have 40 days to comply with a data subject access request. Information must now be provided without delay and at the latest, within one month of receipt. You may be able to extend the period where requests are complex and numerous. However, this must be set out in a response to the individual making the request, explaining why the extension is necessary. There is no longer an automatic right to charge a fee. You MUST provide the information free of charge. However, you can charge a ‘reasonable fee’ when a request is obviously unfounded or excessive, particularly if it is repetitive. You may charge a reasonable fee to comply with requests for further copies of the same information. This does not mean that you can charge for all subsequent access requests. The fee must be based on the administrative cost of providing the information.

For further useful information, the Information Commissioner’s Officer (ICO) have published a 12 step guide to assist with GDPR obligations see link below:
https://ico.org.uk/media/1624219/preparing-for-the-gdpr-12-steps.pdf

Holiday Pay Judgement

admin@ciutz.co.uk (Blog Admin) — Sun, 06 Nov 2016 00:00:00 GMT

There has been a development in Employment Law this week which, as you may have heard or read, changes how employers need to calculate holiday pay. The Employment Appeal tribunal ruled that it is wrong for employers to only take into account basic pay when calculating how much certain employees should receive when they are on annual leave.

The dispute arises from the Working Time Regulations of 1998 which stated that employees should have leave and be paid for it. Its wording was that employees should be paid pro-rata their “normal” pay for annual leave.

In a ruling earlier this year the European Court of Justice held that normal pay should not be restricted to what is in an employee’s contractual rate of pay. Following this workers at 3 road maintenance companies and engineering firms challenged their employer’s calculation of their holiday pay. They said holiday pay should be based on average earnings and not their basic pay. The employees won their cases at the Employment Tribunal and the employers appealed. At that stage the ruling was not binding on other companies.

On Tuesday the Employment Appeal Tribunal ruled in the employees favour setting a precedent for how holiday pay will now be calculated. Workers are now entitled to be receive a sum of money to reflect normal non-guaranteed overtime as part for their annual leave payments. The judgement applies to employees who are required contractually to work overtime as and when necessary (overtime an employer is not obliged to offer but employees are required to perform), yet are not paid for these extra hours when it comes to holidays (extra hours can include paid travel time). Voluntary overtime, even if regular, is not protected AT THIS TIME.

The re-calculation of holiday pay only applies to the minimum 4 weeks holiday required by EU law and not the additional 1.6 week provided by UK regulations or any discretionary holiday on top of that. The tribunal ruled that workers can only make back claims if at the time of their claim it is less than 3 months since their last holiday or there has been three months between holidays.

Technical issue – the EAT rules that the Working Time Directive of four weeks holiday pay covered by this judgement are taken FIRST in any holiday year. So even if someone has recently been on holiday they may have used their four week guaranteed holiday earlier in the year i.e. beyond three months ago.

What is the impact for us today November the 6th?

Employers need to quickly establish their possible exposure, especially as there is a retrospective element (3 months). Establish who would be affected and based on holidays taken, calculate any shortfall in holiday pay in case of a request for back pay: keep records to ensure complaints will be properly addressed and cases defended if necessary.

It is anticipated that there might be an appeal to the Court of Appeal by the employers (who are backed by the government) to have the decision overturned. There is more likely to be an appeal by the Employees to have the ruling that employees can only go back three months overturned so that all underpayments for the last 12 months (in alignment with a previous ECJ ruling) or even back to 1998 should be capable of being claimed. Also Vince Cable is on the case and has set up a “working party” to explore how the impact of the judgment can be minimised. So that’s alright then.

At the moment there are many unanswered questions which may take further court judgements to determine: what constitutes regular overtime; will the ruling apply to “voluntary” overtime and if so how is this defined and how it is proved?

Technically employees can lodge claims now in respect of their August holidays but currently the tribunal fee system will exclude them from claiming as the fees are greater than any amounts owed.

In many ways at this point in time it is a victory for employers as it has prevented employees claiming 16 years back pay (which was the outcome feared). It does herald a change going forward (and for the last 3 months) and gives certainly for the calculation of holiday pay for some employees. However, it is probably the first step towards eventually all pay regularly received (including overtime whether contractual or voluntary / commission) being included in the calculation for holiday pay.

Want to know more with the approaching Christmas Holidays, contact Searchlight Employment Law Solutions at legal@searchlightels.uk or telephone 07861 309 729 and ask for Jane.

Top Tips for Restrictive Covenants

admin@ciutz.co.uk (Blog Admin) — Wed, 11 May 2016 00:00:00 GMT

Restrictive covenants usually pose a challenge for Employers. They are perceived as either being a way to absolutely control former employees by way of injunction if they stray from the terms of the covenant; or, a paper tiger which former employees happily ignore as they appear to steal clients and former colleagues. As with most legal deterrents there is some truth in each position.

This area of law is one in a constant state of flux. In a time of portfolio careers and the requirements for flexibility within a workforce, it is easy to see that restrictive covenants cannot be expected to indulge the most suspicious perceptions of employers. Then there is the operation of social media where business relationships are maintained on networking sites such as Linkedin or Facebook. To untangle key employee connections made over years from those created purely in the performance of their duties for their most recent employer is one that has not been attempted in court. Yet.

The most productive way to approach the drafting of restrictive covenants is to ensure they do not appear to overly restrict a former employee’s right to earn a living. They must go no further than is reasonably necessary to protect the legitimate interests of an employer. With this as the starting point the top tips for restrictive covenants are as follows:

1. Consider carefully when drafting a restrictive covenant its duration and geographical scope. If the covenant is for too long a period of time (i.e. the period when the employee cannot work for a competitor) or too wide, the covenant will be unenforceable. It is worth pointing out that once a court finds a covenant goes further than is reasonable it will be wholly unenforceable. A court will not redraft the terms of the covenant to allow enforcement.

2. The “legitimate business interests” need to be defined as clearly as possible. The main ones are trade connections and trade secrets/confidential information. However, it could also be the poaching of the employee’s former colleagues. If an injunction is to be sought due to a breach the former employer must be able to identify what these are. Any vagueness will militate against the granting of an injunction.

3. Has the role of the employee concerned been properly considered? It is all too easy to believe a job description will contain the extent of the employee role. However, consideration should be given to the possibility that the individual in certain circumstances may fill a position for other colleagues and carry out functions (and be exposed to opportunities and information) above their normal grade.

4. If the company does not want the employee to work at all, to ensure that client relationships are not exploited, then garden leave must be available and the option for its use contained in the Contract of Employment. Although the company would be paying someone to do nothing (or tend to their garden, hence the name) they will have more chance of a court upholding a restrictive covenant if the company still employs and is paying the individual for the duration of the covenant. The company should specify that the duration of any restrictive covenant will be reduced by any time the employee spends on garden leave.

5. The business sector is another factor in determining the acceptable length of a covenant. In a rapidly changing business environment such as app development a shorter length will be better capable of being upheld than a more established sector such as Teaching English as a Foreign Language.

6. Do not neglect returning to the covenants for revision and re-drafting as the business changes or the individual is promoted or is granted expanded responsibilities. A covenant can only be potentially enforceable if its terms apply to the employee’s position and circumstances at the time it was signed.

7. Although it is natural to want to restrict the ability of a former employee to solicit business from existing clients/customers, there is often difficulty in trying to prove exactly how the former employee acted. An additional non-dealing clause may be added to cover incidents where the client/customer approaches the employee without any apparent solicitation. Whether or not the clause is enforceable will depend on the depth of the relationship between the employee and the client.

8. A company in a new and developing business sector will want to ensure that a former employee is not able to seek potential clients of that company. A clause to prevent this could be enforceable if the potential clients are robustly identified.

9. Avoid a cut and paste approach to covenants when drafting one for a new employee. This “tick box” mentality will create a false sense of security on the part of the company and leave the company without protection.

10. Be aware that the employer will need to provide evidence of any alleged breach to be presented to the court in support of the application for an injunction. Also if damages are being sought for the breach the employer will have to show, by way of evidence, the loss flowing from the breach whether profits or from loss of opportunities diverted by the former employee. Therefore the type and availability of any documentary evidence should be considered mind when deciding whether or not to seek an injunction.

When considering the introduction or revision of restrictive covenants it is worthwhile seeking legal advice.

If you want to know more, contact Jane on 07861 309 729 or email me at jane.southall@searchlightels.uk .

Shared Parental Leave

admin@ciutz.co.uk (Blog Admin) — Tue, 10 May 2016 00:00:00 GMT

Parents may be entitled to Shared Parental Leave (SPL) and Statutory Shared Parental Pay (ShPP) if: their baby is due on or after 5 April 2015; they adopt a child on or after 5 April 2015.

Employees can start SPL if they’re eligible and they or their partner end their maternity or adoption leave or pay early. The remaining leave will be available as SPL. The remaining pay may be available as ShPP.

Employees can take SPL in up to 3 separate blocks. They can also share the leave with their partner if they’re also eligible. Parents can choose how much of the SPL each of them will take.

Example: the mother could end her maternity leave after 12 weeks, leaving 40 weeks (of the total 52 week entitlement) available for SPL. If both parents are eligible, they can share the 40 weeks. They can take the leave at the same time or separately.

SPL and ShPP must be taken between the baby’s birth and first birthday (or within 1 year of adoption).

SPL and ShPP are only available in England, Scotland and Wales.

To qualify for Shared Parental Leave (SPL), a parent must share care of the child with either: your husband, wife, civil partner or joint adopter; the child’s other parent; your partner (if they live with you and the child)

You or your partner must be eligible for maternity pay or leave or Maternity Allowance or adoption pay or leave.

You must also: have been employed continuously for at least 26 weeks by the end of the 15th week before the due date (or by the date you are matched with your adopted child); be employed by the same employer while you take SPL.

The partner’s eligibility

During the 66 weeks before the baby is due the partner must: have been working for at least 26 weeks (which can be discontinuous) - they can be employed, self-employed or an agency worker; have earned at least £30 a week on average in 13 of the 66 weeks.

Statutory Shared Parental Pay

You will also qualify for ShPP if one of the following applies: you qualify for Statutory Maternity Pay; you qualify for Statutory Paternity Pay and have a partner who qualifies for Statutory Maternity Pay or Maternity Allowance or Statutory Adoption Pay.

What Parents are entitled to

If eligible and parents end maternity or adoption leave and pay (or Maternity Allowance) early, they can: take the rest of the 52 weeks of leave (up to a maximum of 50 weeks) as Shared Parental Leave (SPL); take the rest of the 39 weeks of pay or Maternity Allowance (up to a maximum of 37 weeks) as Statutory Shared Parental Pay (ShPP).

The mother must take a minimum of 2 weeks’ maternity leave following the birth (4 if she works in a factory).

How much pay?

ShPP is paid at the rate of £138.18 a week or 90% of your average weekly earnings, whichever is lower.

This is the same as Statutory Maternity Pay (SMP) except that during the first 6 weeks SMP is paid at 90% of whatever you earn (with no maximum).

Example: The mother decides to start her maternity leave 11 weeks before the due date and gives notice that she’ll take SPL from 2 weeks after the birth (taking a total of 13 weeks maternity leave). She normally earns £200 a week. She’s paid £180 (90% of her average weekly earnings) as SMP for the first 6 weeks, then £138.18 a week for the next 7 weeks. Once she goes onto SPL, she’s still paid £138.18 a week.

Starting Shared Parental Leave

The parents can only start Shared Parental Leave (SPL) once their baby has been born or adopted (fingers crossed!). The mother or adopter must have either: ended any maternity or adoption leave by returning to work; given ‘binding notice’ (a decision that can’t normally be changed) to their employer of the date when they plan to end any maternity or adoption leave; ended maternity pay or Maternity Allowance (if they’re not entitled to maternity leave, eg they’re an agency worker or self-employed).

The mother or adopter must give notice to their employer (at least 8 weeks) to end maternity or adoption pay, or to Jobcentre Plus to end Maternity Allowance.

A parent can start SPL while your partner is still on maternity or adoption leave as long as they’ve given binding notice to end it.

The mother can’t return to work before the end of the compulsory 2 weeks of maternity leave following the birth (4 if she works in a factory).

Example: The parents are both eligible for SPL. Mother goes on maternity leave 10 weeks before my brother(s) and or sister (s) is (are) born. She decides that she’ll take 16 weeks of maternity leave and gives notice to her employer.

Since the mother has given binding notice, daddy can start SPL as soon as the baby has been born (as long as they’ve given at least 8 weeks’ notice).

What parents must do

They must give their employer written notice of their entitlement to SPL and ShPP, including: the partner’s name; start and end dates for maternity or adoption leave and pay; the total amount of SPL and ShPP available and how much they intend to take; confirmation that they’re sharing childcare responsibility.

They must also include a signed declaration from their partner stating: their name, address and National Insurance number; that they satisfy the qualifying requirements for SPL and ShPP; that they agree to you taking SPL and ShPP.

After receiving this notice, your employer has 14 days if they want to ask for: a copy of the child’s birth certificate; the name and address of your partner’s employer.

This information must be provided within 14 days.

Notice period

They must give at least 8 weeks’ notice of any leave to be taken.

If the child is born more than 8 weeks early, this notice period can be shorter.

They have the right to book a maximum of 3 separate blocks of leave although the employer can agree to more (ha!).

Cancelling the decision to end maternity or adoption leave

The mother or adopter may be able to change their decision to end maternity or adoption leave early if both: the planned end date hasn’t passed and they haven’t already returned to work;

One of the following must also apply: you find out during the 8-week notice period that neither of you is eligible for SPL or ShPP; the mother or adopter’s partner has died (a bit grim for a light-hearted overview but that’s employment law!); the mother tells her employer less than 6 weeks after the birth (and she gave notice before the birth).

Shared parental leave in touch (SPLIT) days

The parents can both work up to 20 days during SPL. These are called ‘shared parental leave in touch’ (or SPLIT) days.

These days are in addition to the 10 keeping in touch days (or KIT) days already available to those on maternity or adoption leave.

Keeping in touch days are optional - both you and your employer must agree to them.

The Modern Slavery Act 2015 and how it affects UK business

Sat, 02 Apr 2016 00:00:00 GMT

The current UK Government has introduced several legislative instruments to encourage greater transparency in how Companies in the UK run their businesses. From equal pay reporting to now combating Modern Slavery, what is clear is that the way businesses are being monitored is changing. The new legislative provisions outlined by the government detail what is expected of businesses to eradicate Modern Slavery in both their own businesses and also their supply chains, with hefty fines and potential prosecution for non-compliance.

What is Modern Slavery?

Modern Slavery is a term used to encompass slavery, forced and compulsory labour and human trafficking. It includes both adults and children subjected to forced labour against their free will. In 2013 the National Referral Mechanism, the UK’s victim identification and support process, received 1,746 referrals of potential victims of trafficking – almost a 50 percent increase on 2012 figures. The 1,746 referrals comprised 64% female and 36% male potential victims. Of those referrals 74% were adults and 26% were children.

For more information, visit the government website and their publication ‘Modern Slavery: UK leading the Fight’

What does the Modern Slavery Act 2015 outline and who is affected?

The Act outlines the criminal activity concerned; knowingly holding another in slavery, requiring another to perform forced labour and arranging or facilitating the travel of another person with a view to their being exploited. The Act enforces increased penalties for those in breach and strengthens the powers of the police and border forces in combating Modern Slavery.

While the Act focuses on bringing to justice those who facilitate criminal activity and aiding the victims, it contains preventative measures as well. The new disclosure duty is one such measure, encouraging businesses to take steps to stop Modern Slavery. This disclosure is achieved through a ‘Modern Slavery’ statement.

Commercial organisations supplying goods or services that have a minimum total turnover of £36 million are required to prepare a slavery and human trafficking statement for each financial year. For those Companies with a tax year end of April 2016, the statement must be drafted by October 2016 and displayed prominently on their website.

Who in the business is responsible for ensuring efforts are made to eliminate Modern Slavery?

Ultimately, the entity that holds the highest position within the Company is responsible for how its deals with potential issues regarding Modern Slavery, whether that entity be an individual or a board of directors. This body is responsible for overseeing every aspect of tackling Modern Slavery; from the creation of the human trafficking and slavery statement to implementing training for its staff to look out for the signs of Modern Slavery. The statement must be signed by this person, and non-compliance will be punishable at the highest level of the business.

What should the Company’s policy be if a supplier is found to have been involved in Modern Slavery?

The Government has encouraged the drafting and implementation of Modern Slavery policies to be available to all staff, and moving forward to notify each of their suppliers of their stance on Modern Slavery and the measures in place to combat Modern Slavery.

Should a Company discover that one of their supply chains facilitates slavery of any kind, they should notify the entity responsible for running the business and/or contract, and state that such practice must be stopped, and due diligence/audits carried out by the supplier to determine the extent of the breach, or the Company will repudiate the contract. Failure or refusal of the supplier to comply should be reported the relevant authority.

Association with Companies that are not compliant with the regulations set out in the Modern Slavery Act 2015 can lead to prosecution, with greater penalties if knowledge is present of such practice.

When entering into a contract with a new supplier or renewing contracts with existing suppliers, what checks will the company conduct or accept?

All businesses that meet the threshold of turnover should require extensive checks of their supplier’s employees, which may be achieved through due diligence and audits on those employees working on the contract/business concerned. A declaration prior to any contractual agreement being created to state that they do not facilitate Modern Slavery within their business is also recommended. Such guarantees will allow the contract to be repudiated upon breach of this statement, and satisfy the requirements of the Government as laid down in the Modern Slavery Act 2015.

What support or guidance is available for suppliers willing to remedy situations of slavery or forced labour found?

There are several helplines and methods of reporting slavery and trafficking for those who discover slavery and trafficking either in their own place of work or elsewhere. However, once it has been identified, what are Companies expected to do? Investigate their recruitment methods, ensure their policies are up to date and that they have a Modern Slavery policy to ensure that slavery and trafficking is not facilitated in the future. The key is training staff to ensure they are aware of the signs and know what to do to report slavery and trafficking.

For further information, please see the Home Office’s ‘Human Trafficking: Practical Guidance’ document.

What due diligence should the company commit to conducting regarding its supply chain?

A key aspect of identifying those that are the subject of human trafficking or slavery is through the due diligence that is carried out by businesses. Such checks will enable large scale monitoring of official documents such as a passport, visa etc. Those subject to human trafficking and slavery are usually paperless, with the traffickers taking away their official documents as a bargaining tool and to prevent the person involved from leaving.

With a statement required each financial year, it seems apt to complete such due diligence checks in line with the publishing of the statement. Records should be kept of any documents that the employee holds, so as to ensure that any audits that are conducted demonstrate to the auditor that the Company is Modern Slavery Act compliant.

What practices are in place to facilitate whistleblowing? What should the company’s policy and approach be to remedying the situation for workers if cases of forced labour are found?

All Companies are encouraged to have a set of policies that afford employees the rights that they are entitled to. One of these rights is the right to protection from identification in relation to an issue that they have reported. Whistleblowing effectively allows an employee to ‘blow the whistle’ on an issue without being formally identified. This is a valuable tool for employers in regards to complying with Modern Slavery legislation. Employees should be encouraged to report any suspicions that they may have about their colleagues without any repercussions for doing so. Reviews of the Company’s policies in relation to whistleblowing are encouraged on a regular basis to ensure that they are effective.

What next steps should Company’s take in light of the above information?

For those Companies that have a tax year end of this April, steps should be taken to assess policies, conduct an audit of its employees and notify their suppliers of their position in regards to Modern Slavery. Once an overview can be obtained, it should be detailed in a Modern Slavery statement that should be published on the relevant website before October 2016.

For those Companies whose year-end is later this year, assess what Companies are doing this year in regards to their statements and relevant policies, which should all be posted on their website, with a view of replicating the same in the next financial year.

The National Living Wage

Tue, 02 Feb 2016 00:00:00 GMT

As the government continues to lower its welfare bill, employers will have to navigate the terminology minefield of employment regulations with even greater care. Among the National Minimum Wage and Living Wage there is now a new kid on the block – the National Living Wage effective from 1 April 2016. What does this mean for employers and what are the possible consequences?

Currently, employers are bound by the rates of National Minimum Wage (NMW) reviewed annually by the Low Pay Commission on 1 October. So, this date is to be circled red in the calendar of each and every accountancy department, because non-compliance is a criminal offence, with possible profound consequences. The NMW rates are compulsory levels of pay per hour for workers and employees and vary according to the age of the payee. For the purposes of the NMW there are three categories, each attracting different level of pay:

under 18s - £3.87
£3.87 - £3.87
over 21 years-old - £6.70

Different rules apply for apprentices, and I shall come to these later.

New Kid on the Block?

To this system, the Chancellor has now introduced a new compulsory requirement and that is for employers to pay the National Living Wage (NLW). Similarly, the rate is to be reviewed annually[1], this time the date to circle red is 1 April. The NLW is both simpler and peculiar, in that it applies to workers and employees, who are 25 years and over, and so for any worker/employee under 25 years of age, the old NMW rates apply. It is useful to view the new NLW as part of the old system, simply creating a fourth age category (for helpful summary click here) or as some experts put it: a NMW supplement[2]. Viewing the NLW as broadening the current requirements rather than introducing a new one is supported by the fact that the same rules apply regarding payments and calculation of hours of work that count towards it.

National Living Wage and Living Wage – one mouthful, two different concepts

The NLW is not to be confused with the Living Wage (LW), rate of pay set by the Living Wage Foundation, initiative of the charity Citizens UK, which from 2011 calculates and annually reviews a level of pay based on the basic cost of living. Crucially, this rate is purely voluntary. The current level of LW for London is £9.40, for the rest of the UK it is £8.25, therefore still higher than the new NLW or any of the old levels of NMW. Whilst the London LW is calculated by the Greater London Authority, the UK LW is calculated by Centre for Research and Social Policy at Loughborough University, and the basis of the calculation is what households need in order to have a minimum acceptable standard of living. The precise definition of the Living Wage is ‘wage that achieves an adequate level of warmth and shelter, a healthy palatable diet, social integration and avoidance of chronic stress for earners and their dependents’, as opposed to the NLW, which is based on median earning, or in other words it is calculated by the Low Pay Commission according to what the market can bear. Despite the similarity in name, the two have little, if anything in common, as the Foundation highlights.

Equal Pay – Overarching Principle

There, of course, remains the overarching principle stemming from the Equality Act 2010 for all employees’ right to equal pay, and the employer’s duty to take action to eliminate any possible discrimination. In the light of the NLW, this may potentially be a fruitful ground for litigation; in the case of apprentices, where an apprentice under 21 years of age is currently entitled to salary £3.30 per hour (NMW rate), the same apprentice 25 years old and older will have to be paid £7.20 per hour (NLW rate). This puts older applicants for apprenticeships into obvious disadvantage and employers, where they choose the younger over the older applicant, open to accusations of discrimination. Similarly, where an employer will treat an older job applicant less favourably over younger applicant in order to avoid having to pay the NLW, this will amount to unlawful age discrimination.

Old Dressed Up as New?

Employers wanting to mitigate the impact of the NLW on their business may want to change the existing terms of employment contracts in order to absorb the increase in wages, such as convert certain allowances or non—cash benefits into basic pay, or simply reduce the benefits in the wage package. According to the National Minimum Wage Act 1998 s 23(1)(c) a worker, who qualifies for the NMW has the right not to suffer detriment because of it; by analogy and especially as the NLW may be seen as yet another category within the NMW, it would seem that changing an existing wage package in order to absorb the NLW would amount to a detriment as effectively, the worker will not gain in real terms. Consequently, this would seem to be in breach of the legislation and employers will have to consider very carefully how to implement the NLW. Whereas guaranteed non-deferred payments such as bonuses and incentive payments, time away from home allowances, or an inner city weighting allowances can be included in the calculation of the NLW, guaranteed deferred payments such as pensions, productivity or sales related bonuses cannot. Similarly, overtime, shift premia, advances of wages, redundancy payments, as well as special allowances (for working in dangerous conditions or unsocial hours) or benefits in kind cannot be included. These are the old rules on Calculating the minimum wage , which remain unchanged and apply equally to the NLW as of 1 April 2016.

The HMRC offers live webinars on the NMW and NLW, which you can view here .

Although aimed at workers, you may find the calculator a useful tool in understanding, who is entitled to the NLW.

[1] This, again is the role of the Low Pay Commission.
[2] On accessible discussion on the topic of the new National Living Wage, listen to Radio 4 podcast The Future of Work.

EAT Ruling on British Gas v Lock

Mon, 01 Feb 2016 00:00:00 GMT

On Monday, 22 February 2016, The Employment Appeal Tribunal (EAT) in British Gas Ltd v Lock and Secretary of State for Business, Innovation and Skills upheld the earlier decision of the Employment Tribunal from 5 February 2015, ruling that Mr Lock, the Claimant in the original hearing, is entitled to have his holiday pay calculated on the basis of his basic pay and results-based commission he ordinarily earns as part of his employment.

Mr Lock is one of many thousands such Claimants against this and other employers around the country. The facts of Mr Lock’s case were simple; he was employed by British Gas as a salesman on a salary of £14,670 pa. In addition to this basic salary, he was entitled to commission for every successful sale he made. The commission Mr Lock gained was well in excess of his basic salary, some 60%. His holiday pay did not however take the commission into consideration, having the effect that whilst on holiday Mr Lock was only earning his basic salary.

As a matter of EU law, commission must be included in workers’/employees’ holiday pay. The issue before the ET was therefore whether domestic legislation, namely Working Time Regulations 1998[1] (WTR) can and should be interpreted in accordance with EU law[2]. So, from Mr Lock’s perspective, this was somewhat a legalistic issue, having had previously won his case at the Court of Justice of the European Union (CJEU) to which the ET referred his claim earlier in 2014. Although the decisions of the CJEU are binding on the courts in the UK, the domestic courts may nevertheless rule that UK legislation cannot be interpreted in line with EU law – and this precisely what was the issue here.

The ET ruled and the EAT affirmed, that because the intention behind the Parliament’s enactment of the WTR was to give effect to the EU Directive, where there is incompatibility, the court is entitled to read words into the domestic law to achieve alignment. The spirit of the EU Directive is clear – workers are entitled to have their holidays paid. Mr Lock’s arrangements were such that he was effectively discouraged from taking holidays, during which he was substantially worse off.

What does the decision mean for employers? Whilst the judgement is seen as significant victory for employees and as UNISON’s General Secretary commented, ‘This case will have implications for thousands of workers across Europe who for years have been denied a fair deal.’, it is unclear, how employers should approach the actual calculation of the holiday pay and whether/or to what extend employees may be entitled to back payments. It is also possible that British Gas will decide to appeal to the Court of Appeal, in which case the last judgment on the subject may not have been pronounced yet!

You can view the Employment Tribunal’s decision here

The Employment Appeal Tribunal’s decision is to be found here

[1] Working Time Regulations 1998 (SI 1998/1833).
[2] Council Directive 2003/88/EC.

UK Flood Alert: Employer Obligations, Employee Rights and How to Weather the Storm

Fri, 15 Jan 2016 00:00:00 GMT

The UK in 2015 has experienced some of the worst flooding since Met Office records began in 1910, with many having to evacuate their homes amid the seemingly never-ending rainfall.

Companies in the North of the UK and Scotland in particular have had to shut down or limit their trading amid the relentless storms, affecting business owners, employers and employees. It is not, however, the first time such adverse weather conditions have hit the UK, and it will not be the last (visit www.bbc.co.uk/news/uk-35203820 for more information on the flood warnings in place for the coming weeks).

With this in mind, it is of vital importance that businesses are equipped with the necessary knowledge of how to avoid litigation when the weather dictates either the employers' or employees' fate.

Employment relations can be strained at the best of times, but when the floodgates open (literally) it is vital that employers remember the cardinal rules of contract in assessing how to deal with these situations. Such conditions may dictate the employee’s ability to attend work or a business’s ability to continue trading (visit www.bbc.co.uk/news/business-35189179 for more details on businesses affected in the recent months).

‘It’s not my fault boss; I’m up to my ears in it!’

Employers expect employees to make all reasonable efforts to attend work up to the limit of threatening the individuals’ health and safety. Indeed, many Companies have policies in place that stipulate what is acceptable reasoning for absences and what is not.
Should an employee’s car breakdown on the way to work, for example, it is expected that they inform the company of this, and that they attend work as soon as reasonably practicable.
But how should you deal with an employee that cannot attend work due to flooding? Employers are encouraged to be as understanding as possible with employees who are affected significantly by adverse weather conditions, offering the option to work from home if practicable.
If this is not the case, the TUC has in the past encouraged employers to offer employees time off work to deal with the aftermath of floods if affected ( http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2014/02/14/employers-urged-to-be-sympathe... )

The ‘doom and gloom’ that is zero-hours

The employers approach to such circumstances should be dependent on the contract that their employees are bound by. Many companies have opted to impose zero-hours contracts, despite the negative press, to enable flexibility for both employees and employers in difficult times. Such contracts stipulate that employees are not contracted on specific hours, enabling the Company to lay-off without notice and without the fear of litigation. It also enables employees to gain work and earn elsewhere without being tied to a Company that can offer no work. Such contracts can be relied upon in the instances of flooding. If there is no option to attend work or to work from home due to the nature of the industry, employers have the option to declare that there are ‘zero-hours’ available, and therefore no work for their employees. Employers should contact each employee directly to inform them if they are affected as good practice.

If the going gets tough: Lay off and Redundancy

Many contracts not subject to the zero-hours phenomenon have a lay-off clause that also allow for the same provisions. Lay-off up to 4 weeks in a row or 6 weeks over a 13 week period should be paid/unpaid as stipulated in the contract. After this time employees are entitled to apply for redundancy payment. Any employees that are not entitled to pay during periods of lay off are entitled to ‘guarantee pay’ from the Company (if they have the provision to do so) or the government at a maximum of £26 a day over 5 day week for up to 3 months. Further information on these provisions can be found on the government website ( https://www.gov.uk/lay-offs-short-timeworking/overview) . Each contract should be checked carefully for the existence of such clauses, as each contract will differ in most cases.

For those contracts that do not have a clause that allows for lay-off, employees should be paid their full normal contractual wage, even when the business cannot open, to avoid litigation. This is because there is no provision to state otherwise. Failure to remunerate employees correctly will be deemed a breach of contract and will result in a trip to the Employment Tribunal, so ensure you are prepared for all possible circumstances.
Further, it should be noted that exercising a lay-off clause or imposing the terms of a zero-hours contract will not terminate the contract. If trading is ceased indefinitely, employees over 2 years’ service should be notified that they are being made redundant. Under 2 years’ service, the notice clause provisions apply and should be paid in lieu to avoid litigation. Information on redundancy can be found on the government website ( https://www.gov.uk/redundant-your-rights/overview) .

Ultimately, both employer and employee are bound by their contractual obligations, come rain or shine.

The Perils of the Christmas Party a.k.a. Plan – Prepare – Take Reasonable Care!

Sun, 20 Dec 2015 00:00:00 GMT

Bridget Jones chose her work’s Christmas party to let her boss, Daniel, know that she ‘cannot live without him!’. Admittedly, a see-through-top and a super mini skirt had its role to play, but Daniel did eventually take her on the Grace Kelly-like mini-break in the countryside. An outcome hard to come by in the world we inhabit! The usual post-Christmas party stories are that of embarrassment, disciplinary action – or worst: litigation.

Employers could be forgiven - if swamped by the overwhelming scare stories on the internet, they decide that Christmas parties are best avoided.

Yet many would agree that a Christmas party is a feel-good factor opportunity for employers to reward their employees, and make them feel part of a community, where each individual matters. For team spirit, company profile and good working relationships this is invaluable. What then, as an employer, should you do?

Three points need to be taken into consideration:

1. Despite appearances, this is work and usual work rules apply.

2. No matter where it takes place – it is a workplace.

3. You are the employer and as such, responsible for your employees

The key words here are: plan - prepare - take reasonable care!

PRE-PARTY

So! You have decided to throw a Christmas party. You want everyone to have a good time, be civilised and for the party to be a success. First consideration – not everyone will want to be part of it. Whatever their reasons may be - religious, health, or family - you need to respect it. Make it clear that although it would be nice to see everyone, no one is at any event required to attend. Do remember to extend the invitation to everybody, so no one feels excluded.

Secondly, consider what may encourage the greatest number of people to attend. Would a late evening, early afternoon or a Christmas lunch be the most suitable option for the majority of your employees? Not everybody does celebrate Christmas, so it may be a good idea to frame the event as an End of Year Party, for example. How about inviting spouses and partners – could this be an attractive option? Your employees may feel that they spend a lot of time away from home anyway; bringing their partners may make it more of a family thing.

And thirdly, your invitation should include a careful and diplomatic reminder of the conduct you expect of your employees. This is a work ‘do’ and the same disciplinary procedures will apply: no harassment, no bullying, no fighting and no inappropriate language. If the following day is a working day like any other, you need to make it clear that late arrivals and showing up intoxicated will not be tolerated.

AT THE PARTY

Time to turn to the party itself. What do you want the party to be like? Gregarious with disco and stand-up comedian, or a buffet style with discrete live music in the background? Choose an appropriate venue, a venue where you can trust will have their health and safety in order, taking one concern of your shoulders. This applies both to the premises and to the food and drink on offer. As with invitations, be mindful of the diversity of your team – people have different restrictions and dietary requirements. Apart from meat-free options, consider whether traditions of foreign employees dictate that a certain meal be eaten at Christmas. For example, a carp on the menu, if many of your employees are Polish, will make for a nice gesture!

Rather predictably, alcohol is the focal point of any party, and Christmas party is no exception. Putting the CEO’s credit card behind the bar may be a memorable office chat, but for reasons of employees’ safety and any potential personal injury claims - best be avoided. Consider: you have responsibility for your employees and their health ad safety. What is the risk assessment here, bearing alcohol in mind? Presumably, you wouldn’t want your employees to become drunk to a point when things go wrong. Limit the amount of available alcohol and provide options for those who are teetotallers.

By way of a PS, leave the mistletoe on trees, risqué entertainment for stag/hen parties and strict business matters to be dealt with in the New Year.

POST-PARTY

Party over, how is everyone getting home? With alcohol involved, you wouldn’t want anyone to drive – so how about a collective drop-off mini bus? Or maybe someone in charge of arranging taxis; that way, you’ll know you have done all that was reasonable in the given circumstances to avoid drunk driving. And this, really, is the key: ‘appropriate having regard to the risks’ – for as long as you have planned the event, assessed the possible risks, prepared preventative measures and put provisions in place – provided you have done all that was reasonable and appropriate in the circumstances - should things go wrong, you can respond honestly and openly and with peace of mind that you are in a good place of putting things right; or, should matters reach litigation: in a good place to defend the claim.

Remember not to preach water and drink wine – literally! Whatever the rules, best lead by the example. Follow the mantra plan - prepare - take reasonable care , then sit back and enjoy a memorable merry festivity!