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Redundancies - Position not Person

#HRFridayFact: In redundancy cases it’s the position that’s redundant not the employee. All employees in the same role should be put at risk

When making redundancies, even if it is just one, the redundancy lies with the position rather than the individual, so if you need to make a position redundant, all employees who work in that role, even in other locations, should be put at risk of redundancy.

One of the pitfalls that employers often fall into when making redundancies is to target an individual rather than look at the bigger positon and establish whether more people should be put at risk.Not following a fair process in redundancy situations puts the company at risk of an unfair dismissal and so a potential Employment Tribunal claim.

A good example of where this occurs is when a company runs a number of similar contracts. A catering company across a number of schools or offices perhaps or a security company that manages the security at a number of sites.

Should one of those contracts be lost, then the people that worked in that contract can’t simply be made redundant. Instead everyone across the business that worked at the same level as those being made redundant would have to be put at risk of redundancy. All catering managers or chefs for example, or all security guards

A fair selection process would need to be followed to establish who was the least suitable for the role(s) to continue in employment, and it is they who would lose their jobs.

The selection criteria may include such things as qualifications, experience, disciplinary records and aptitude to do the job in question. Each criteria would be allocated a score and the lowest score would be the person to be made redundant.

Offering voluntary redundancy would also be an option which could circumvent going through the selection process, although you may find that you lose employees that you don’t want to. If more employees apply for voluntary redundancy than you have positions to lose, then can will still go through a selection process, this time considering how important each applicant is to the business and also what the cost of their redundancy would be.

Just because someone volunteers, you don’t have to accept it. The company can decline the request because the person is business critical.

If the contracts we have used in our examples are lost to a competitor then a potential TUPE situation would ensue, however that’s a subject for another blog post.

If you require any help or support with making redundancies, even if it is just one, then please call us on 01452 331331 or e-mail info@hrchampions.co.uk





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07 April 2017, 12:32
 

Rest Breaks and Time Off

#HRFridayFact: Workers that work 6 hours a day or more are entitled to one uninterrupted 20 minute rest break during their working day.

With some exceptions, workers have a right to at least a 20 minute break away from their workstation when they work for more than six hours in a day. The break does not have to be paid but should be taken sometime during the working day and not at the beginning or the end of the day.

Commonly in the UK, workers have a lunch break of 30 or 60 minutes over a seven to eight hour working day. This is usually taken in one go, but can be negotiated with the employer. So an employee who smokes for example, or wishes to express breast milk following maternity leave,  might ask to split their lunch break allocation of an hour into 30 minutes in the middle of the day and two 15 minute breaks; one mid-morning and one mid-afternoon.

An employer isn’t obliged to accommodate requests for re-allocating break time, but they might want to consider it for the sake of employee relations. The employer should remain consistent with staff requests however and the role should be conducive to a flexible break arrangement. It probably wouldn’t work in a situation where a minimum level of cover is required at all times; in a care environment for example or a busy call centre.  

In addition to rest breaks during the day, workers are also entitled to a break of 11 hours between working days. So a worker who finishes at 9.00pm shouldn’t be expected to start work until after 8.00am the following day.

Workers are also entitled to an uninterrupted 24 hours break each week or 48 hours each fortnight.

There are exceptions to the rules regarding breaks and these are largely relate to the working conditions or industry. Some shift workers, hospital workers and those employed in agriculture at certain times of the year are examples.

Employers should give special consideration to workers that do jobs where their health & safety and their colleagues’ health & safety may be put at risk. Monotonous work on a factory production line perhaps or whilst working at heights.

Other rules also apply to workers under the age of 18, but again there are exceptions.

For help and support with allocating breaks and your contractual and legal obligations, call us on 01452 331331 or e-mail info@hrchampions.co.uk



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30 March 2017, 16:12
 

Dismissal: Unfair, Wrongful & Constructive

#HRFridayFact: The 3 dismissal types an employer can be taken to Tribunal for are Unfair, Wrongful & Constructive. They are all different

Reasons for dismissal can often get confused but it’s important to know what’s what so that you can ensure that procedures are followed correctly and you are not exposed to any potential to be taken to an Employment Tribunal.

The three types of dismissal that Employers can find themselves in court for are Unfair, Wrongful and Constructive. We’ll look at each in turn.
 

  • A claim for Unfair Dismissal can only be bought by an employee who has more than two years of continuous service, thus having qualified for workers’ rights. Unfair dismissal occurs when an employee is dismissed in an unfair, unjust or unreasonable manner. An employee might bring an unfair dismissal claim if he or she is dismissed for reasons of either their capability to do their job or for their conduct, but disputes these reasons.

  • A Wrongful Dismissal claim will most likely be bought for a breach of contract. There is no qualifying period for wrongful dismissal so it’s possible for an employee to bring a wrongful dismissal claim having only been employed for one day. We deal with wrongful dismissals often when a worker hasn’t been given the correct notice period at dismissal or their final pay is wrong. It’s easy to fall foul of wrongful dismissal for failing to follow procedure. An employee may be thoroughly guilty of a misdemeanour at work but if you fail to give him or her sufficient notice for a disciplinary hearing for example, you would have failed to follow procedure and so any subsequent dismissal would probably be classed as wrongful.

  • Constructive Dismissal occurs when an employee resigns from his or her position and subsequently brings a claim because they felt they were forced to resign due to some action or breach of contract by their employer. This may be because they felt poorly treated, such as a fundamental change to their contract being imposed. Cases of bullying also tend to end with constructive dismissal claims. Employers may wish to increase this notice period, particularly if the position is difficult to recruit for. This brings about its own problems however because the employer needs to balance the risk of recruiting the wrong person with the needs of the company in having an extended notice period.

Losing at Tribunal can be very costly, but even defending a claim can rack up a substantial sum, even if you win. At HR Champions, we consider it our job to make sure you stay out of Tribunal so we recommend that you contact us as early as possible if you are ever in doubt about an employee situation.

Call us on 01452 331331 or e-mail info@hrchampions.co.uk for support with all you employee issues.

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24 March 2017, 13:59
 

Holding Right to Work Evidence

#HRFridayFact: Proof of right to work in the UK must be held for all employees. Documents must be checked before applicants are employed.

You must check that a job applicant is entitled to work in the UK before you employ them. We recommend that you ask all job applicants to bring their original documents with them to their interview so that they can be checked and a copy made.

There are a number of valid documents that can be used to confirm a potential employee’s right to work. A UK or EU member state passport is probably the most straight forward to ask for, or a Home Office issued biometric residence document or permit for nationals of non-EU countries.

If, for UK nationals, a passport isn’t available, then the minimum requirement is a document from a Government agency that shows their name and National Insurance number; such as a P45, AND a birth or adoption certificate. Again, these must be original documents.

When checking documents, you must do so with the individual in question present. Ensure that photographs on documents are a true likeness and make an un-editable copy such as a photocopy. You must make a note of the date that the documents were checked. If there is a discrepancy with the applicant’s name, supporting documents such as a marriage certificate must also be produced.

If the job applicant is successful then you need to retain the copied documents on file and also for two years after they leave your employment. You should destroy document copies of non-successful job applicants so as not to contravene data protection guidelines. However you may want to retain application forms and recruitment process information for up to six months in case you have a similar vacancy arise and/or to defend any discrimination claims from unsuccessful applicants.

The Government provides a downloadable checklist which if completed, provides a statutory excuse that you have undertaken your duty to check employees’ right to work should the UK Border Agency detect anyone working illegally for you.

Failure to correctly hold right to work documentation for employees could expose employers to a fine of up to £20,00 per case.

For further help and support with right to work checks and the recruitment process, call us on 01452 331331 or e-mail info@hrchampions.co.uk

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17 March 2017, 11:32
 

New Penalties for Phoning/Texting Whilst Driving

#HRFridayFact: It’s illegal for Employers to cause or permit drivers to use hand-held phones whilst driving & can be held equally as liable

New laws introduced on the 1st March now mean that drivers caught using hand held mobile phones will receive six points on their driving licence and a minimum fine of £200 with no option to reduce this by taking an educational course.

Drivers caught using a phone within two years of passing their test will have their licence revoked and will have to take a retest.

This could prove significant for businesses that expect workers who drive to take and make phone calls or text messages whilst they are at the wheel. With a driving ban possible for achieving 12 licence points in three years, two offences could find a driver unable to drive. If it could be proved that the ban occurred due to company policy, the business in question might find itself forced to employ a driver who couldn’t do his or her job.

In fact businesses that provide mobile phones to employees, or who reimburse the cost of work related calls and texts on private phones will make themselves culpable to any associated offence if their employees are put in a position where they are expected to make or receive calls whilst driving.

Even hands free mobile phones can cause distraction and mean that the driver is not in complete control or driving with appropriate attention. If a police investigation determined that it was the use of the hands free phone for a work related matter that contributed to an accident, the employer could be found to be liable.

In a worst case scenario, if a fatality ensued that involved a business that required drivers to use mobile phones whilst driving, the directors of that business could be prosecuted for corporate manslaughter.

It is not enough not to require employees to use mobile phones whilst driving. We recommend that employers actively forbid their use and that this is clearly laid out in a robust mobile phone policy. With the available functionality of modern smartphones, your policy should go further than the making or receiving of calls and should include texting, taking photos and gaming.

Drivers should wait until they are safely parked with their engine switched off before using their phones and remember that being stopped at traffic lights or in heavy traffic does not count as being parked.

It’s also worthwhile making sure that any office based staff are equally aware of the rules so that they are not tempted to make calls to colleagues whilst they are driving thereby inadvertently leaving your company open to prosecution.

For further details or help with your company mobile phone policy, call us on 01452 331331 or email info@hrchampions.co.uk


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08 March 2017, 15:26
 

Time Off Work - Paid or Unpaid

#HRFridayFact: Employers are not obliged to pay staff when they are absent for Doctor appointments. Unpaid leave or holiday are options

Whilst most employers will grant their staff an hour or two of paid leave to visit the doctor or dentist, there is no obligation on the employer’s part to do so. Under the employer’s duty of care, it’s right that the employer grants time off for employees to seek medical help, though they are entitled to withhold payment for the time that employees are not working for them.

The exception is for pregnant women attending doctor or hospital appointments related to their pregnancy and employers must grant paid leave in these cases.

Employers are also obliged to allow time off work for employees to deal with issues involving dependants, ie children or elderly relatives. However this does not have to be paid leave.

Most of the time, occasional absence for a few hours isn’t going to damage a business and it is good for employer/employee relations to allow this time off as paid. More persistent absence however, such as for a course of physiotherapy, may require a different approach. Under these circumstances an agreement may be that the time absent is either unpaid or the hours are accumulated and taken as holiday.

We recommend that employers encourage their staff to arrange medical appointments either at the beginning or at the end of the day to minimize the impact on the normal working day. This can be published in the staff handbook so that it is recognised as normal company practice.

For help and assistance with managing absence at work call us on 01452 331331 or e-mail info@hrchampions.co.uk

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25 February 2017, 14:04
 

No Additional Probation for Internal Movers

#HRFridayFact: When moving to a new job or position within an organisation, employees do not have to undergo another probation period

It’s fairly standard practice for all employees who join an organisation to have to serve a probationary period of usually three or six months. However, if an employee is promoted to a new position or simply moves from one job role or department to another, then they should not be subject to another probationary period for the new position.

We strongly recommend that employers utilise properly managed probationary periods for new starters. They are an opportunity to evaluate a new employee’s ability to do the job satisfactorily, but equally importantly, they present a chance to assess how the employee fits into the culture of an organisation.

Once we know someone has the ability and aptitude to do their job and that they have the right attitude, we’re probably going to sign off their probation. If they get promoted or moved at a later stage, their position within the organisation shouldn’t be subject to another probationary period.

There may be an option to have to go through a trial period for a new role, particularly if more or new duties or responsibilities are involved. Failing the trial period might mean the employee is returned back to their original position but it should be made clear that this is a potential outcome of the promotion.

Even so, you will have probably given the employee the opportunity because they show potential. Therefore you may want to use the trial period as an opportunity to identify any training needs that he or she has to be able to fulfil the new role satisfactorily.

Promoting somebody whilst they are in their probationary period presents its own issues. It could be argued that by virtue of the fact they are promoted, you had passed their probation for their original job; making a simple dismissal under probation rules unviable.

Remember that just because someone has passed their probationary period they are not suddenly immune to dismissal. Whilst workers don’t accrue full rights until they have been employed for two years, if they have passed their probation, it is best practice to follow a formal procedure if you later want to dismiss.

Want more support with probationary periods and dismissals. Call us on 01452 331331 or e-mail info@hrchampions.co.uk

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24 February 2017, 09:14
 

Reducing Benefits to Avert Redundancies

#HRFridayFact: A benefits cut as an alternative to redundancies is an option for employers if employees agree to the contractual change

As we saw this week at Tata Steel, employees can opt to take a reduction in benefits, including pension benefits and even pay, as a cost saving alternative to the organisation making redundancies.

As benefits are contractual, employees must agree to any changes. Strictly speaking, agreement should be sought for enhancements as well as reductions, but it’s unlikely that anyone would object to a pay-rise so written notification is usually adequate in such cases.

In the case of Tata Steel, the company needed to make significant cost savings in order to save jobs. As the company pension scheme was identified as a significant cost centre, employees were balloted with the option of reducing the scheme benefits rather than face uncertainty over the longevity of their employment.

In return for accepting the changes, Tata have promised to invest in the company enough to sustain jibs for at least five years.

One of the other consequences of the pension scheme change, which is set to be spun-off as a standalone scheme, is that it makes the company much more attractive as a business acquisition or merger. Anyone looking to take over the business will have less to worry about under TUPE regulations which protect the rights and benefits of workers when a change of ownership occurs.

For a company to want to cut benefits, they must be able to demonstrate a strong and valid business case for doing so. Potential redundancies is certainly one. Where all staff will be affected in the same way, a robust consultation  process will reduce the risk of a breach of contract claim.

Of course there may be a genuine case for redundancies; if certain roles within a company are no longer required for example. Reducing benefits would normally be quite far down the list of solutions but it’s worth remembering that it is there as an option.

For further help and support regarding redundancies or any other aspect of HR and Employment Law, call us on 01452 331331 or e-mail info@hrchampions.co.uk

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17 February 2017, 14:43
 

Sexual Harrassment on Valentine's Day

#HRFridayFact: With Valentine’s Day next week be aware that persistent advances towards a colleague could be classed as sexual harassment

Making personal advances towards someone, particularly if it’s Valentine’s Day is usually considered acceptable behaviour. But if the advances become persistent it may be sexual harassment and if it happens in the workplace then it is likely to become your problem.

You can’t really implement a ban on personal relationships in the workplace. For one thing it would be likely to breach the Human Rights Act and if any relationships did occur, it would most likely force people to carry on a liaison in secret. Besides, the workplace presents an opportunity for people to meet and many businesses are run by Husband and Wife teams so it might be considered hypocritical in such circumstances.

Most employers are unlikely to be too alarmed by a relationship between colleagues provided work isn’t affected. If you are concerned about any effect that a workplace romance might have on your business, you’re better off making sure that you have policies in place which will give you some control over managing the situation and controlling any impact it has.

For example, you may want to avoid a relationship between a manager and his or her subordinate as this could make some management decisions more difficult or subject to bias. Reserving the right to move an employee to another department may be a solution.

You might also want to eliminate what might be considered inappropriate behaviour by disallowing intimate activity such as kissing at work. Plus of course you would want to avoid any behaviour that would bring the company into disrepute.

It may not be frowned upon for an employee to make a personal advance toward another, unless the employee making the advance was using their position as a manager perhaps. Offering a pay rise in return for going out on a date would be direct sex discrimination. Equally, if an employee’s advances towards another are rejected but the suitor persists in his or her advances, then this could escalate to sexual harassment and would need dealing with under the employer’s dignity at work policy.

A separate policy may not be necessary to manage workplace relationships as most scenarios should be covered by your other policies if they are suitably comprehensive. Make sure that anything you have in place includes same sex relationships to avoid any claims of sexual orientation discrimination against the company.

For help and support with your company policies or anything mentioned here, call us on 01452 331331 or e-mail us at info@hrchampions.co.uk

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10 February 2017, 13:56
 

Consultation for Contract Changes

#HRFridayFact: Changes to contracts may require consultation depending on the severity of the changes and employee’s willingness to accept

Contracts of Employment lay out the terms under which an employee is engaged by an employer to carry out work in exchange for payment. Any changes that are made to a contract must therefore be agreed by the employee(s), or undergo a period of consultation if they are not accepted or contested.

There are a number of elements that a Contract of Employment must contain. These include:

  • Hours of work
  • Place of work
  • Remuneration
  • Holiday allowance

If there is a requirement to change any of these elements then the employees who are affected must either be willing to accept the changes or, if they are not willing, they must be consulted about the changes and given opportunity to express their objections.

A good example is a change to a place of work. Company expansion or the expiry of a lease may mean that a business has to move premises. Because the change of place of work is a contractual change, employees must be consulted about the move.

If it is a case of moving to shiny new offices that are just down the road, it’s unlikely that anyone will object so an announcement and informal chat with employees to confirm this should be adequate. However, if the move is over a more significant distance, or to a part of town that isn’t serviced by public transport, then this may affect some employees enough that they don’t want to or can’t make the move.

Provided you have sound business reasons for making the changes and they are deemed as reasonable, then you will be entitled to enforce them at the end of the consultation period. Those employees not willing to accept the changes may then choose to leave.

There are regulations regarding consultation and the period of consultation required. If less than 20 employees are affected then 2 to 3 weeks may be adequate. Between 20 and 99 employees requires a consultation period of at least 30 days and for 100 employees or more it’s 45 days.

For contractual changes that are to the employee’s benefit, such as a pay rise, you’re unlikely to have any objections. It is still a change to terms however so strictly speaking agreement must be sought and confirmation of the changes must be put in writing within eight weeks.

For any help and support with changes to contracts and consultation periods please call us on 01452 331331 or email info@hrchampions.co.uk


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03 February 2017, 11:59