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Are You Prepared for Adverse Weather?

#HRFridayFact: If your business is closed due to adverse weather but your staff make themselves available for work, you must still pay them

Where a business is unable to open owing to adverse weather, but employees still make themselves available for work, then they should still be paid as they are fulfilling, or attempting to fulfil, their duties under their contract of employment.

With the onset of winter, we can expect the weather to worsen and potentially include snow and flooding. This could force your business to close temporarily because it is not accessible or simply because the premises can’t be opened up because the person with the keys can’t get there. So if your business is closed but your staff still arrive for work, they are entitled to be paid for the entire period you’re closed.

The type of business and business premises involved will dictate how serious the issue is. For a shop, restaurant, factory or warehouse it’s clearly going to be significant. For office based staff on the other hand, the availability of the Internet means that some alternatives may be an option such as working from home or arranging to work from an alternative site.

So that your employees know what to do should foul weather strike, we strongly recommend that all employers have a robust Adverse Weather Policy in place. The policy should clearly lay out how the organisation will act in cases of adverse weather and how it expects its employees to behave. It should also include how employees pay might be affected.

For some businesses, adverse weather may make it too dangerous for employees to be working; roof-workers in icy conditions for example. Here, a “lay-off” clause might be an appropriate solution and this should also sit within your adverse weather policy.

Should your business remain open during adverse weather, but your employees are unable to get to work, then there is no obligation to pay them. You may choose to leave the decision on pay during bad weather discretionary or employees could be given the option to take the forced time off as paid holiday or unpaid leave. There might be an option for staff to work from home where appropriate but again this should be made clear in your policy.

Having an Adverse Weather Policy in place which is properly implemented amongst staff is a cheap and effective solution that will leave everybody in an organisation clear about what to do and what to expect work-wise when an adverse weather event occurs.

If you don’t already have one, or yours needs updating because of the opportunities that the Internet provides, we recommend that you take steps now to get it in place and ensure your workers are aware of it so that everyone knows what to expect. We can’t do anything about the weather, but as businesses we can be prepared to manage what we do about it.

If you would like further help or advice regarding the issues raised here or anything else related to HR and Employment Law, just call us on 01452 331331 or drop us an e-mail to info@hrchampions.co.uk


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02 December 2016, 13:32
 

Time-Off for the Kids' Nativity Play

#HRFridayFact: Time off work for employee’s to watch their kid’s nativity play is classed as discretionary leave and may or may not be paid

A child’s Nativity or Christmas school play isn’t an emergency so employers are under no obligation to allow their employees time off work to go and watch their child’s performance. Consenting to time off would be classed as discretionary leave and employers should ensure that the policy is applied consistently throughout the workforce to avoid any issues or discrimination claims.

In an earlier post we discussed how employers must allow staff to take reasonable time off for emergencies involving dependants. This would normally be a child, but could also be an elderly or disabled relative for whom the employee was a carer or held responsibility for welfare. Any time taken off in emergency circumstances does not have to be paid.

An event such as a child’s Nativity play clearly isn’t an emergency. So whilst an employer isn’t obliged to give time off for staff to go and watch their child perform, it may seem harsh and uncaring not to; particularly when, after all, the play is to celebrate the season of goodwill.

Unlike emergencies, school plays and sports days are known about in advance and so can be planned for. With this in mind, an employer may decide that staff must take a holiday day for such events. If holidays can be taken as half-days then this may be a mutually acceptable solution. Breaking holiday down into hours to accommodate occasional absences is doable but you may elect not to due to the headache it will cause when managing absences.

Depending upon the profile of the workforce, a business might have just one or two employees that ask for a few hours off for school play duties. As the impact on the business is likely to be negligible, the absence may be simply overlooked. However it may disgruntle co-workers if this time off is paid and no equivalent time off is offered to them.

Conversely, an organisation may have a high proportion of potential absentees and so a hard and fast rule may be a better option. For some businesses, particularly retail and leisure, Christmas is the busiest time of year and can often be a period where no leave is allowed at all for anybody.

Ultimately, consistency is key. Whichever policy you decide to apply for ad-hoc or discretionary time off, keep it consistent across the workforce to maintain morale and harmony. Don’t be drawn into favouring any particular reason for requesting leave. Allowing time off to attend Nativity plays but not for other events may leave you open to a discrimination claim from employees whose religion does not celebrate Christmas.

Your policy should be available in you staff handbook and if you would like some help or support with this then just call us on 01452 331331 or e-mail info@hrchampions.co.uk

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25 November 2016, 10:33
 

Minimum Workplace Temperature

#HRFridayFact: Weather’s colder but there is no minimum workplace temperature in UK law. The Approved Code of Practice suggests 16 degrees

Workplace temperature is covered by the Workplace (Health, Safety & Welfare) Regulations 1992. Whilst the approved code of practice suggests that workrooms should never drop below 16° Celsius (or 13° Celsius where rigorous physical effort is involved), the Regulations escape quoting a particular figure by using the term ‘reasonable’ when discussing workplace temperatures.

Therefore it is down to the employer to decide what reasonable comfort is, depending on the particular circumstances. This ultimately falls under an employer’s implied duty of care to his or her employees.

Heating buildings is expensive and there is an environmental impact to consider so employers should consult with their staff to determine what temperature is acceptable.  Not only is 16° likely to be too cold to be considered comfortable for the average office environment, an employer should also think about the productivity of staff who are shivering at their desks.

Whilst we would probably all prefer to work in an environment that has a comfortable temperature, is it fair to expect employers to arbitrarily spend money on heating to keep the workplace at an optimum 21°? In austere times where fuel bills only go in one direction, we might be happier to wear an extra layer to work to help keep our jobs secure.

Employers should also remember that temperature is only part of the issue. Stuffy and poorly ventilated workspaces that are too warm can be uncomfortable places to work in; and can become a catalyst for colds and other airborne infections. An entire workforce taken down by flu, even just for a few days, may have a greater financial impact than organising a well managed working environment in the first place.

Ultimately, your employer has a duty under Health and Safety guidelines to provide a safe working environment. This is bound to have some influence on the workplace temperature, but this will differ for people working in a cold-store and those working in a bakery; so ‘reasonable’ remains the key word.

For help and support with managing your workplace and your duty of care to employees call us on 01452 331331 or e-mail info@hrchampions.co.uk

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18 November 2016, 10:49
 

Observing Silences at Work

#HRFridayFact: Refusal to observe a minute’s silence may constitute failure to follow a management instruction so could be gross misconduct

Whilst we hope the situation would never arise, would you know how to handle any individuals who chose not to observe a minute’s silence that your organisation held as a mark of respect for the fallen soldiers of wars and for victims of murder and atrocities?

A two minute’s silence held on the 11th hour of the 11th day of the 11th month follows a tradition inaugurated by King George V to mark the end of hostilities of World War I on that date. Now known as Armistice Day or Remembrance Day, the tradition continues and these days we remember those who have fallen in more recent conflicts also.

One two minutes’ silences are also a traditional sign of respect for victims of severe natural disasters and of atrocities such as the 9/11 attack on the World Trade Centre, the 7/7 bombings in London and the terrorist attacks in Paris, including the Bataclan Theatre, a year ago. Where practical, the silence is widely observed by individuals and organisations alike; including schools, public buildings, sporting venues and places of work.

In the workplace, it is likely to be the senior management team who would instigate observing one or two minutes’ silence amongst staff and it would be reasonable to expect all employees to comply. Therefore, anyone who chose to disregard such an instruction could be accused of gross misconduct for failing to carry out a reasonable management instruction.

Despite the motives of those who carry out atrocities, there is no religious connotation to the silence, and therefore there can be no breach of the Equalities Act on religious grounds. Indeed, it would be a struggle to see how anyone could be offended for any reason on a discriminatory basis.

Apart from Armistice Day, when 11.00 o’clock is traditional, silences are usually held around midday; so when an event arises, we suggest that you give your employees notice at least on that morning. Should you receive any objections to maintaining silence for a minute, for the sake of employee relations you could provide a separate room where those not wishing to partake could go.

However, as we have said, asking employees to observe a minute or two’s silence is a reasonable management instruction and anyone not complying is open to disciplinary action. Dismissal may be a little heavy handed but a written warning might be appropriate action to take.

For clarification or further support about this or any of our Friday Facts or any other HR or Employment Law issues please call us on 01452 331331 or e-mail info@hrchampions.co.uk

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11 November 2016, 08:57
 

Time off for Dependants

#HRFridayFact: All employees are entitled to reasonable time off work without pay to deal with an emergency involving a dependant

All employees have the right to take a reasonable amount of time off during working hours to deal with unforeseen matters and emergencies involving dependants. There is no legal right to be paid for time off for dependants, unless the employees contractual terms state otherwise.

The variable and undefined elements of this rule are;

  • Who is classed as a dependant
  • What is meant by unforeseen or an emergency
  • What is a reasonable amount of time off?

Without wishing to state the obvious, a dependant is someone who depends on an employee for care. Clearly this will include children, elderly relatives and spouses or partners who have an illness, are unwell or who are injured.  It may extend further however to perhaps an elderly neighbour for which an employee is a nominated point of contact.

A partner or a partner’s son or daughter may also be considered a dependant but at what stage they become dependent is open for debate. It’s reasonable to expect your employees to inform you if there circumstances change and you generally encourage this so that there are surprises for either party.

An emergency or unforeseen matter could be a breakdown in care or an instance of the dependant falling ill or suffering an accident. Taking a dependant to a hospital appointment for example is more likely to be classed as a planned absence for which holiday arranged but this could become an emergency if the arrangements for another person to take the dependant failed at the last minute.

Equally, a school closure for say a teachers’ strike is likely to be planned but a sudden closure for bad weather or flooding cold be classed as an emergency.

Arranging or attending a funeral would also fall under this category.

A few hours up to a couple of days would normally be considered reasonable time off; giving enough time to deal with the matter or make alternative arrangements. If the emergency was a serious illness or accident, then taking compassionate leave may be the correct approach.

Employers are under no obligation to pay for time off for dependants but as usual, a pragmatic approach that encourages good employee relations and shows you as a caring and compassionate employer is always a good idea. Docking someone’s pay to attend a funeral for a couple of hours may seem harsh so you might be inclined to ignore occasional absences for this sort of thing.

Consistency is key however so make sure you treat all employees equally. A written policy with clear guidelines in your company handbook that you can apply to everybody will help to avoid misunderstandings and anyone trying to abuse the system.

For any further advice or support we’re available on 01452 331331 or by e-mailing info@hrchampions.co.uk

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04 November 2016, 13:43
 

Summary Dismissal

#hrfridayfact: Even for gross misconduct, a dismissal process should be followed. You can’t simply sack an employee on the spot.

Whilst behaviour considered to be gross misconduct such as theft, fighting or sleeping at work may warrant a summary dismissal, employees with more than two years’ service cannot be simply dismissed and escorted from the premises. Even for the most serious of misdemeanours, employers have to go through a formal disciplinary procedure or potentially face a claim for unfair dismissal at Tribunal.

For employees with less than two years’ service who have passed their probationary period, we still recommend that a formal process is followed to eliminate any risk of wrongful dismissal.

Your process should start with an investigation, and depending upon your industry and the risk of having the offending employee at work during this part of the process, you do have the option to suspend him or her from work, albeit on full pay.

Depending on the offence, the investigation may amount to simply interviewing solely the employee in question. You should interview other employees for evidence where appropriate and take statements that interviewees have the option to review and sign. It might also potentially involve seeking statements from outside your organisation from sources such as your customers or the Police.

If the investigation warrants a move to disciplinary action (and we would assume that for a gross misconduct offence it would), then the offending employee should be invited to a disciplinary meeting. Give at least 48 hours’ notice prior to the meeting taking place and you must share any evidence you intend to refer to. You must also allow the employee representation at the disciplinary meeting which can be either a work colleague or an elected representative (not simply a member) of a trade union, even if you don’t have a trade union active at your workplace.

We also recommend that somebody different to the investigator undertakes the disciplinary meeting. Should they decide that dismissal is the appropriate course of action, then at that stage employment can be terminated. Remember however that the employee is entitled to appeal any disciplinary decision that is made and it is best practice to have the appeal heard by a different manager to the one that took the disciplinary meeting.

We are often asked to support clients through disciplinary processes and we can act on your behalf at any stage; investigation, disciplinary, including dismissal, and appeal. If you have a disciplinary case that you would like some support with then please call us on 01452 331331 or e-mail info@hrchampions.co.uk

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28 October 2016, 13:17
 

Failing to Process SSP

#HRFridayFact: Failure to process sick pay for employees could jeopardise their future benefit claims and your ill-health dismissal process

You may think you’re making life easier by just paying employees as usual when they take a few days off sick, but not following the process properly for statutory sick pay (SSP) could cause complications if the absence later warrants an ill-health dismissal.

When an employee is absent from work on sick leave, processing the absence as sickness triggers certain systems within the Government benefits systems which may come into play at a later stage.

The first three days of absence are deemed as qualifying days for which there is no pay. After this, statutory sick pay is paid, for which the current rate is £88.45 per week. Employers can opt to pay for the first three days and/or to top-up SSP to the employee’s normal rate of pay but this should be shown as an employer’s top-up on the employee’s payslip.

SSP lasts for 28 weeks and it is after this period that an employer can look to dismiss on ill-health grounds. If the employer does not register the SSP however, the Government Benefits Agencies will not recognise that SSP has been exhausted and can therefore refuse to pay any other benefits that the employee might try to claim.

SSP is a statutory payment, which means it has been set by an act of Parliament and failure to pay it is a breach of law. Unlike Statutory Maternity Pay (SMP), it is no longer recoverable by the employer and therefore extending the period that it must be paid creates an unnecessary financial burden.

Computerised payroll systems will make all the calculations for you so long as any absences are correctly entered. We strongly advise therefore that you have robust practices for recording sickness absence and these are carried through to whoever manages your payroll.

Should you require any support with managing sickness, both long and short term, and/or support with reviewing your absence policies and procedures, call us on 01452 331331 or e-mail info@hrchampions.co.uk

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18 October 2016, 15:36
 

Commission to be Included in Holiday Pay

#HRFridayFact: It’s official; holiday pay must include compensation for any results-based commission that would ordinarily be earned

Following a Court of Appeal judgement this week in the case of Lock vs British Gas, it has now been confirmed that employers will have to include commission payments in the holiday pay of employees who usually earn results based commission as part of their normal remuneration.

This case, involving British Gas and an employee, has been rumbling on for a number of years and is seen as a test case for all employers who pay results-based commission to staff.

The ruling means that employees who usually earn commission that is directly linked to the work that they carry out, are entitled to be paid for the commission they would have earned had they not been on holiday. It follows on from an earlier ruling regarding regular overtime payments being included in holiday pay.

It was agreed that the ruling should only apply to workers who have normal working hours and whose pay does not vary according to the amount done but who receive results based commission as part of their normal remuneration. It will not therefore, affect staff who receive a discretionary bonus based on department or organisational performance.

What still remains unclear is the reference period that will be used to calculate the pay. The previous 12 weeks seems to be the current consensus amongst commentators but organisations should consider their industry when making decisions. Seasonal variations can affect sales, such as in the motor trade, and so employers should take this into consideration.

The ruling has a huge potential impact and financial implications on how sales staff will be remunerated and it’s suspected that many organisations have been waiting for this judgement. British Gas itself has many other potential claimants waiting in the wings so it’s expected that the decision will be appealed again.

Despite the expected appeal, we recommend that employers start thinking about how they will manage the effects the ruling will have on their own businesses; remembering that any changes to contracts will most likely require a period of consultation.

At HR Champions we have already compiled clauses and wording that employers can use in contracts so give us a call on 01452 331331 or e-mail info@hrchmpions.co.uk if you require any support with this.


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14 October 2016, 14:46
 

Holiday Accrual Whilst on Parental Leave

#HRFridayFact: Whilst on Maternity, Paternity, Shared Parental or Adoption leave, employees still accrue holidays including bank holidays

Parents of new-born children and those newly adopting children must not be disadvantaged in any way when absent from work on parental specific leave. This includes holidays, and so holiday leave is still accrued, including bank holidays.

It’s probably easiest to consider Maternity, Paternity, Shared Parental and Adoption leave (which we’ll refer to as Parental Leave for the purposes of this article) not as leave at all, because apart from pay, employees must receive the same benefits they would have done if they were still in work. This includes benefits such as health care and employer pension contributions as well as holiday entitlement.

Employers can word their holiday entitlement clauses in two ways. Assuming an example where a company offers just statutory leave, the choices are:

  • 20 days holiday plus public/bank holidays

OR

  • 28 days holiday including public/bank holidays

Generally speaking, we think it is easier to manage and administer if the latter clause is used. This is particularly true of Parental Leave because accrued holiday can simply be calculated proportionate to the amount of Parental Leave taken.

So, if an employee takes Parental Leave for nine months, which equals 75% of the year, he or she will accrue 21 days holiday which is 75% of annual leave entitlement; assuming a statutory provision. The accrued leave can be taken as per normal holiday entitlement, so with adequate notice from either the employee or the employer.

One extra point to note is that if the Parental Leave is taken over the organisation’s normal holiday year end date, the accrued holiday is automatically carried over to the new holiday year.

So, using the above example, an employee returning from nine months Parental Leave could have accrued 21 days during their time away from work, and upon returning could be entitled to their 28 days for the new holiday year totalling 49 days holiday entitlement.

If, upon return from Parental Leave, there is time to take accrued holidays within the current holiday year however, then it should be taken and not carried over.

It’s complicated isn’t it, so if you feel that you need some help and support then call us on 01452 331331 or e-mail info@hrchampions.co.uk

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07 October 2016, 11:37
 

Employee, Worker or Contractor?

#HRFridayFact: Workers are not necessarily employees. The status of someone who does work for you can drastically affect their rights

‘Part-time’, ‘temporary’ and ‘casual’ are phrases that are commonly interchanged when referring to employees; however these terms mean different things from a legal standpoint so it’s important that employers understand each employee’s status and refer to it accurately. A worker’s status can drastically affect the rights he or she is entitled to, particularly around unfair dismissal and redundancy.

We’ve compiled a brief guide to employee status and a brief synopsis of the rights of each. This is by no means exhaustive and if you are in any doubt you should contact us for further advice.

Full-Time Permanent Employee: An employed member of staff who works a full working week (Usually 37.5 hours but can vary) and for whom you deduct PAYE tax and National Insurance through your payroll. They are entitled to paid holidays of at least 20 days plus public holidays per year, statutory sick pay and maternity/paternity/adoption/shared parental leave. Full employment rights accrue after two years’ service.
 
Part-Time Permanent Employee: The same as a full-time employee, including rights accrual, but will work for a reduced, set number of hours or days per week; e.g. 16 hours per week or 3 days per week. Holiday and some other benefits will be calculated on a pro-rata basis.

Temporary Employee: A member of staff employed for a set period usually of less than 6 months. If a temporary worker is taken on as a permanent member of staff without a break in employment of at least 2 weeks, the period of temporary work will be accumulated with their permanent term when calculating rights. A temporary worker who has worked for you for more than 24 months will have accrued the same rights as a permanent employee.

Temporary Employee – Agency Employed: For very short term appointments of just a few weeks or even days, temporary staff are often taken on via an agency. In this situation, workers are usually employed by and paid by the staffing agency. Current legislation means that they have equal rights as employed staff for company facilities and benefits such as a staff canteen or crèche; and rights to equal pay after 12 weeks.

Fixed Term Contract: Fixed term contracts are usually used to employ staff to manage or cover a specific project orperiod of maternity leave. Once that project is complete the position for which the fixed term contract was instigated no longer exists and the employee is let go. The worker is employed by you for the period of the contract. Again, workers under fixed term contracts of more than 24 months will accrue full employee rights. This means that redundancy might be the more appropriate option to terminate the contract if employment exceeds 2 years.

Casual Workers: Casual workers are likely to be employed on a zero hours contract. They are only given work when there is work to be done and therefore only paid when they have carried out any work. There is no obligation for an employer to provide work or for the worker to accept. Event catering is a good example of an industry that would use casual workers. Casual workers don’t have any rights although once again this changes if they worked continuously without a break in service for more than 24 months. In any documentation they should be referred to as workers and NOT employees.

Contractor: A contractor would be self-employed or employed through another company and provide services to you for a fee. You would not be responsible for paying a wage or salary nor any benefits. Instead you would pay in response to being invoiced. The relationship would be governed by Business Law rather than Employment Law. However, a contractor who works exclusively for one customer for an extended period of time might be considered to be an employee by the Inland Revenue and so subject to PAYE rules.

In all cases you should at the very least check that your employee’s contracts describe what you believe their status to be. If there is a discrepancy, don’t act without seeking advice as you may unwittingly be in breach of contractual terms. You can contact us for further advice or assistance regarding employee statuses and relevant contracts by telephone on 01452 331331 or by e-mailing info@hrchampions.co.uk

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27 September 2016, 15:31