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Vehicle Tracking Obligations

#HRFridayFact: Employers can only use vehicle tracking with their employees’ knowledge and consent & must comply with the Data Protection Act

The proliferation of GPS technology in recent years has made vehicle tracking technology significantly more accessible and intricate. Employers who deploy vehicle tracking must do so transparently and remember that vehicle information that can identify a specific individual will fall within the remit of the Data Protection Act.

Vehicle tracking can have some major benefits for businesses. Information such as the vehicle location, distance travelled, route taken and driver habits can easily be monitored. This data can then be used to highlight fuel inefficiencies, monitor vehicle wear and tear, improve driver habits and of course significantly contribute to vehicle security. All of which can help improve overall efficiency and customer service.

Organisations that use vehicle tracking however must be very clear about their legal obligations.

Employees must be made aware that their vehicles will be tracked and consent to it. This can be accomplished within the terms of their employment contract. If the vehicle is made available for private use, then there must be a mechanism to suspend tracking outside of business hours; such as a privacy button.

Overzealous monitoring may well cause ill-feeling or suspicion amongst employees so we recommend that employers have a policy in place that explains the reasons why vehicle tracking is in place and how any information will be used. To comply with data protection, the policy should include details of why the data will be gathered, how it will be used and stored and who has access to it.

If there is a reasonable belief that a company vehicle has been used inappropriately or that there are unusual patterns of activity or non-activity then the tracking data can be used to investigate this. A normal investigation procedure should ensue and the vehicle tracking data can be brought in as evidence.

Inappropriate use of a vehicle that brings a company into disrepute or falsifying company documents such as a timesheet could warrant as much as a dismissal so it’s paramount that your policy is up to date and accurate so that any evidence used is admissible.

For more support with implementing or enforcing a vehicle tracking or monitoring policy you know where we are. Call on 01452 331331 or e-mail info@hrchampions.co.uk

21 July 2017, 13:52

Calculating Holiday for Part-Time workers

#HRFridayact: When calculating holiday taken by part time workers it should applied to what they work based on their normal working week

Calculating holiday entitlement and holiday pay for part time workers can sometimes be a complicated issue to get your head around. To minimise any potential for error, it’s best to calculate it and apply it based upon what the employee works during their normal working week; whether that’s hours or days per week.

All employees have a statutory entitlement to a minimum of 28 days holiday per year including the standard eight UK public holidays. This equates to 5.6 weeks per year. Part time workers are entitled to holiday calculated on a pro-rata basis of the statutory entitlement.

So, an employee who works three days per week is entitled to three fifths of statutory or 16.8 days per year including bank holidays.

Someone who works 20 hours per week is entitled to 112 hours per year.

You must remember to apply any holiday taken based upon the employees working pattern. So, someone who works five hours per day for three days per week and goes on a two week holiday for example, will effectively use up six days or  30 hours of their annual allowance depending on how the holiday is calculated.

For casual workers or those who work irregular hours, it may be easiest to calculate holiday as it accrues for hours worked. Statutory holiday equates to 12.07% of hours worked so for someone who has worked 50 hours say, they have will have accrued 50 x 12.07% = 6 hours 2 minutes holiday. Because of the nature of causal work, where workers aren’t obliged to accept work that is offered, some employers choose to add the 12.07% as they go as additional pay, negating any liability to pay accrued holiday pay on the cessation of work.

Most payroll software will calculate holiday entitlement for you but it’s worth knowing how it’s worked out so you can explain it to employees and included entitlement in their contracts. To minimise the risk of error when calculating holiday, we recommend that you use the Government holiday calculator web page at https://www.gov.uk/calculate-your-holiday-entitlement which covers pretty much all possible scenarios.

For any further help or support with employee holidays or any other HR related matter, call us on 01452 331331 or e-mail info@hrchampions.co.uk

14 July 2017, 09:23

Employees' Right to Written Terms

#HRFridayFact: All employees have a right to a written contract of employment. New employees must receive theirs within 8 weeks of starting

With HR and Employment Law becoming increasingly complicated, it’s sometimes easy to overlook the basics. One of the basic rights of all employees is to have a written statement of the terms under which they are employed which we usually wrap up as a contract of Employment

Whilst it is acceptable for the terms of employment to be laid out in a letter, we strongly recommend that a contract is used. Apart from providing additional gravitas, a standardised contract means that you are consistent across all employees and all of their terms and obligations can be covered. Equally, the employee will be happier fully understanding the terms under which they are employed and their own obligations to the company.

The contract should contain the explicit terms under which the employee will work including job title, start date, remuneration, working hours, and holiday entitlement. We also recommend that it states the employee’s place of work, including any potential variations of where they may work; a different office or store for example. This isn’t a complete list of clauses the contract should contain, but you get the idea.

Any terms not stated in the contract will revert to statutory so we encourage employers to be as comprehensive as possible. Terms that affect all employees, like the disciplinary procedure, should appear in the staff handbook and references made to this where appropriate.

It’s a legal requirement that any new employees must receive their contract, ie their written terms of employment, within eight weeks of starting work. Failure to this could result in a fine and will be looked upon dimly should a matter ever go to tribunal.

Provision and review of Employment Contracts and Staff Handbooks is one of our key services, so if you would like support in this field then please call us on 01452 331331 or e-mail info@hrchampions.co.uk

07 July 2017, 13:48

Handling Employees who "Storm Out"

#HRFridayFact: An employee who declares that they quit and storms out of work should be given time to cool off and an opportunity to return

Having an employee who dramatically storms out of work, intimating or stating that they quit on the spot, can leave employers confused about what they should do. In such circumstances it’s wise to give the employee the benefit of the doubt and allow them to return to work. Don’t ignore it however and follow up with some action.

We’ve seen it happen on television, and some employers have experienced it first hand, but an employee storming out of work can be disruptive and needs to be handled assertively.

The reasons why someone might go off in a huff are varied. They may object to something they have been told or asked to do, may disagree with a management decision or simply be tired and frustrated by their job. Of course there are dozens more reasons and circumstances which may provoke such behaviour, so be careful not to jump to conclusions.

As employers and managers we must be pragmatic and not react to the behaviour in a way that could worsen the situation for either party. It might be tempting to slam the door firmly shut behind the employee but that’s likely to cause more problems than it solves.

Instead, give the employee a period of time to cool down. Wait to see if he or she returns to work for their next shift. If they do then you can have a conversation with them. Determine if there are any underlying problems or mitigating circumstances. If there is, then offer support. If it was just a display of temper then you’ll need to be clear that the behaviour was inappropriate and some form of disciplinary action may be where it leads.

If the employee fails to show into work the next day without any form of contact then it becomes a case of unauthorised absence and should be managed as such until they return to work or not. Until you have a written resignation, you still have a duty of care and some responsibilities, not least those that come under HMRC and taxation rules.

You’ll need to write to the employee and ask them to attend a meeting. We recommend delivering a letter by hand on the same day or by recorded delivery to arrive the next day. Or both. The meeting will be an investigation at first and an opportunity for them to present their case or side of the story.

Depending on the outcome of the investigation, including whether or not they attend, either you’ll agree a return to work and/or it will go to a disciplinary process. They may still decide to tender their resignation of course but at least now it hopefully won’t be in the heat of the moment.

Remember that you don’t need to pay an employee for the time that they are not at work and if they never return then you won’t have to pay their notice but there might be some holiday pay to calculate.

For help and support with nay HR and Employment Law matters, especially the prickly ones, call us on 01452 331331 or e-mail info@hrchampions.co.uk

30 June 2017, 10:01

Statutory and Contractual Notice Periods

#HRFridayFact: There is no statutory notice period required from either party where an employee has less than one month’s service

Statutory notice periods are the minimum period of notice that employers or employees can give when dismissing or resigning from post. These can be overridden with longer periods of notice in the employee’s contract of employment.

Employers have up to eight weeks to issue a contract of employment to a new starter. So if the contract hasn’t been issued and either party decides to terminate the employment within the first month, then no notice is required and the employee is free to simply leave.

If the contract has been issued and signed by the employee, then any contractual notice period contained within it will apply.

If the employee has been employed for a month or more but for less than two years, then the statutory notice period the employer must give is one week. This increases to two weeks’ notice after two years’ continual service. A further week of notice is added for each completed year of continual service up to a maximum of 12 weeks.

Employees need only give one week’s notice after one month of service and this does not increase with length of service unless otherwise stipulated in the employment contract.

After two years’ service, redundancy is likely to be the main reason an employer will want to dismiss where a disciplinary matter isn’t involved. It’s much more likely therefore that the employee will give notice and it’s for this reason that you should ensure that the notice period is specified in the employment contract and that it is suitable for the position.

For jobs that are difficult to recruit for, because a specific qualification is required for example, you may want to impose a longer notice period on the employee to give you time to recruit a replacement and also allow for a period of handover or transition. For other jobs, perhaps sales roles, you may want to exit an individual as quickly as possible.

You can specify different notice periods for different employees and have this written into individual contracts. You don’t have to have a blanket notice period that covers all staff.

Don’t forget that you can also incorporate Payment in Lieu of Notice (PILON) or Garden leave but these terms must be included in the contract to be enforceable.

For help and support with writing and issuing contracts of employment, call us on 01452 331331 or e-mail info@hrchampions.co.uk

12 April 2017, 15:34

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

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

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.

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

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

08 March 2017, 15:26