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Discrimination vs Bullying

HRFridayFact: Upsetting a colleague by unkindly referencing their ginger hair colour could be classed as bullying but not discrimination

The consequences of discrimination in the workplace can prove to be very costly for employers as tribunal awards are unlimited. Having ginger hair however is not a protected characteristic and so using this feature to harass or bully a colleague would not fall under discrimination rules.

The protected characteristics under The Equalities Act for discrimination purposes are gender, sexual orientation, race, age religious belief, disability. Upsetting a colleague by unkindly referencing a protected characteristic could be classed as discrimination.

Awards for discrimination have reached a staggering £4.5 million; and whilst this is an exception, there is no limit to the size of an award in discrimination cases.

Bullying and harassment awards run into the thousands or low tens of thousands of pounds. Claims could be for wrongful dismissal on the grounds of breach of contract by the employer for failing to uphold their bullying and harassment policy. Or there could be a constructive dismissal claim if the aggrieved employee felt they had to resign because they could not put up with their treatment at work.

Both of these could be further enhanced with awards for loss of earnings if the claimant was subsequently left out of pocket for not working whilst they looked for a new job.

Of course it is best to avoid both discrimination and bullying at work as an employer could find themselves liable for any awards made if it can be proved that they had no or inadequate policies in place and/or if they failed to train other staff in the application of those policies.

A business that can prove that they have taken reasonable steps to implement policies that safeguard against discrimination and bullying, and have created a non-discriminative organisational culture that is “lived and breathed”, can estrange themselves from the acts of any offending employees. Any fines or awards would then be attributed to the offending individual(s) who would be liable to pay.

Our “Dignity at Work” workshop is an excellent training course for businesses who want to ensure that any risks against discrimination or bullying and harassment claims are minimised.

Ask us about it on 01452 331331 or e-mail info@hrchampions.co.uk


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05 May 2017, 12:44
 

Applying Holiday Policies

#HRFridayFact: Employers can dictate when staff take their holiday where it suits the needs of the business. Use a fair approach however

A proportion of your employees will probably have the timing of their summer holidays governed to some degree by the school holidays of any children they have. Whilst you are able to dictate when staff take their holidays to suit your business needs, a fair approach should be employed to avoid any discriminatory issues arising.

Most businesses will manage a holiday booking system that tries to be fair to all staff, but a first come first served arrangement usually prevails. We recommend that a formal request is made in writing, perhaps on a specific holiday booking form, or via any HR IT system that you might use. It a good idea to have a visible or accessible record of booked holidays so that staff can plan around holiday already allocated to colleagues. A simple wall chart might suffice.

Your holiday booking policy should be clear and transparent and you should be consistent in applying it at all times. You may need to rely on evidence of this if you find yourself denying a holiday request made by an employee so that he or she can attend a religious festival for example.

Just because someone has already booked their flights, this doesn’t guarantee that they will be given the time off. Again your policy should clearly state that employees should confirm with their manager or supervisor that they can have the time off work before they make any financial commitment or expenditure.

Employers are entitled to tell staff at an individual level when they must take time off. This may prove useful if an employee would be unable to perform their job because a particular colleague is absent, or if an employee hadn’t taken their holiday allocation under Working Time Directive rules.

You may find that it’s useful to have it written into your staff handbook if you know that your business will be consistently closed each year and your staff must allocate some of their holiday for that purpose. Between Christmas and New Year is a good example of this.

The statutory rule to remember when stipulating or when booking holiday is that double the notice must be given as the amount of holiday time to be taken. So if you tell an employee that they must take a specific week as holiday, or they request a week’s holiday, notice must be given or the request received at least two weeks before the holiday commencement date.

Finally, employers cannot prevent employees from taking their statutory holiday allowance of 28 days including bank holidays. So make sure that holiday is properly monitored to prevent an unavoidable clash of dates at the end of the holiday year for example.

For further help and support with holidays, including handling requests and implementing policies, call us on 01452 331331 or e-mail info@hrchampions.co.uk

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28 April 2017, 12:29
 

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

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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





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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