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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
 

Whistle-Blowing

#hrfridayfact: Dismissing a worker for whistleblowing (exposing a wrongdoing in the workplace), is unfair and open to a tribunal claim

Under the Public Interest Disclosure Act 1998, workers are protected if they bring information that is in the public interest about a wrongdoing in their place of work, to the attention of their employers or a relevant organisation.

Formally known as ‘making a disclosure in the public interest’, the common term for disclosing a wrongdoing is ‘blowing the whistle’; hence the terminology for the legislation. It was introduced so that employees are not discouraged from revealing what might amount to criminal activity about their employers, for fear of unfair treatment at work or of losing their job.

Organisations should have a whistle-blowing policy in place and it would be usual for employees or workers to approach the employer first to make the disclosure. If they feel unable to do this, they should approach a prescribed person or body to ensure that their employment rights are protected.

A full list of prescribed people and bodies is available on the gov.uk website and includes organisations such as the Charity Commission, the Children’s Commissioner, the Care Quality Commission and the Civil Aviation Authority. Disclosure directly to the media for example would mean that the employee loses any protection that the legislation provides.

To qualify under the legislation, the disclosure must be in the public interest and must be regarding information where the worker reasonably believes one or more of the following is, has or will be taking place:

  • A criminal offence
  • The breach of a legal obligation
  • A miscarriage of justice
  • A danger to the health and safety of any individual
  • Damage to the environment
  • Deliberate attempt to conceal any of the above

If an employee is dismissed or selected for redundancy as a result of whistle-blowing then the dismissal is automatically considered unfair and therefore prone to a tribunal claim.

Avoiding any reasons for whistle-blowing to occur is obviously the best course of action to take but if you would like support with preparing or reviewing your whistle-blowing policy or need help with a whistle-blowing case, then please call us on 01452 331331 or e-mail info@hrchampions.co.uk


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27 January 2017, 13:48
 

Requesting References

#HRFridayFact: When applying for references, you must have your prospective employee’s permission before their current employer is contacted

Job offers are often made with the condition that the offer is subject to the receipt of satisfactory references, usually from previous employers. However, the prospective employee’s expressed permission should be sought before any contact is made with the candidate’s existing or previous employer.

Employees don’t usually want it known that they are looking for another job; at least not by their manager or boss. Therefore, you need to make sure that it’s okay to contact a prospective employee’s current or previous employer, even if a job offer depends upon satisfactory references being received; and even if they have already provided the names of referees.

Imagine the potential upset it would cause if a candidate chose not to accept a job offer but you had already written to their manager for a reference. It could seriously compromise their current working environment and you might be in breach of data protection legislation.

It’s a good idea to ask prospective employees to include a comment that it is okay to seek references as part of their acceptance of their job offer. This shouldn’t cause an issue, particularly if the job offer is conditional upon satisfactory references being obtained. Plus you’ll have permission in writing.

Employers are under no obligation to provide a reference and we always recommend that only factual information is disclosed. So, to increase the probability of receiving references, only ask for information such as position held, dates worked and remuneration.

Information that is subjective or based on opinion may be unfair on the employee and leave the referee open to a claim. For example, a question such as, “Does this person have a good attendance record?” is open to interpretation. What one employer considers to be a poor attendance might be considered excellent by another as attendance might be compared with other employees.

If a job offer is made but no references are returned, you may want to implement an alternative plan such as an extended probation period to give yourself the time and opportunity to assess the employee’s ability to do their job. If you do intend to extend the employees probation period, this should be made clear to them and in writing.

For help and assistance with requesting and giving references, or with any stage of the recruitment process, call us on 01452 331331 or e-mail info@hrchampions.co.uk


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20 January 2017, 13:56
 

Discretionary Paid Leave

#HRFridayFact: Discretionary paid leave, eg for birthdays, should be identified as such so they are not included in any holiday calculations

If you offer your staff discretionary days off work that are paid, for birthdays or between Christmas and New Year perhaps, you should clearly state that they are discretionary in your to avoid their inclusion in any holiday pay calculations should an employee leave.

We know that statutory holiday for employees is 28 days per year comprising a minimum of 20 days holiday plays eight days of national public holidays. A new employee who starts part-way through your company holiday year will be entitled to an amount of holiday proportionate to the length of holiday year remaining.

Equally, if someone leaves your employment during the holiday year, you will need to include in their final pay an amount for any holiday that they have accrued but not taken. So if someone leaves six months into your holiday year and has not taken any holiday leave up to that date, then their final pay should include 14 days’ pay for the holiday they have accrued.

If you give your employees the day off for their birthday and you class this as holiday, then this too should be included in any final pay holiday calculations, even if their birthday hasn’t happened yet.

This will also be the case if you give your staff the time off between Christmas and New Year as extra holiday.

To avoid any issues arising, specify any extra paid days off like this as “discretionary” paid leave. This means that it is at your discretion whether or not the holiday days are granted. You’ll probably want to make it a companywide rule too. That way you’ll avoid facing any discriminatory or bullying claims for denying extra leave to any particular employees.

Annual leave is normally detailed in Contracts of Employment; for discretionary leave however, your Staff Handbook is probably a good place to put it, just remember to use the term “discretionary”.

Don’t forget that you are entitled to specify when employees take their holiday. So it is perfectly okay for you to insist that staff must reserve three days of their annual holiday entitlement to take between Christmas and New Year.

For any further support with absence of any kind, call us on 01452 331331 or e-mail info@hrchampions.co.uk

 

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13 January 2017, 13:56
 

Issuing Contracts of Employment

#HRFridayFact: A Contract of Employment, or at least employment terms, must be issued in writing within 8 weeks of an employee starting work

A contract of employment exists as soon as an agreement is reached to make payment in return for the undertaking or carrying out of work. This is usually done in a job offer letter, however the full terms of employment must be put in writing within eight weeks of an employee starting work.

The job offer letter will usually lay out the most critical terms such as start date, place of work, working hours, remuneration and holiday entitlement. A comprehensive offer letter can act as an employment contract, however we recommend that a separate contract document is issued that is consistent across the workforce, in case changes or updates need to be applied at a later stage.

There should also be provision for the employee to sign the contract as acceptance of its terms.

Employment contracts should stipulate the terms that are specific to each employee. Rules and conditions that cover everyone should be referred to in the Staff Handbook. So a driver may have a different contract from a cleaner in terms of pay and contracted hours, but they would both be subject to the same absence and sickness policies as laid out in the Staff Handbook.

Apart from the legal obligation to provide a written contract, a robust Employment Contract and Staff Handbook are crucial tools for managing staff effectively and for supporting disciplinary processes.

Failing to issue a written contract prevents you from specifying rules or conditions to which your employees must adhere whilst they work for you. In the event of a dispute or grievance you will only have statutory law or case law to hold employees to account.

Contracts of Employment and Staff Handbooks need to be looked at and updated regularly so that you are not exposed to any risks from changes in Employment Law. A good example of this is the abolition of the Default Retirement Age. Any clauses relating to a specific retirement age should be removed from Staff Handbooks as they are at best unenforceable, and at worst, age discriminatory.

Attending our regular Employment Law Updates will help you to keep the terms of your contracts and handbooks compliant with current legislation although we recommend a full professional review at least every three years.

If you would like us to review your employment contracts and staff handbooks, or if you need support with any other aspects of HR and Employment Law, please call us on 01452 331331 or e-mail info@hrchampions.co.uk

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06 January 2017, 11:41
 

What You Need to Know When Employing Elves

#HRFridayFact: Any elves taken on at Christmas via an agency to meet increased toy demand receive immediate access to certain benefits.

Depending upon how many children have been good, Santa may need to take on extra elves to meet toy demand at Christmas. Elves taken on via an agency have access to certain benefits from day one, including access to parking, the staff canteen or crèche facilities. After 12 weeks in the same role they will gain full benefits.

Santa may prefer the authority that employer status gives him but he should remember that employees have access to full benefits from day one such as sick pay and the National Living Wage, which increases to £7.50 per hour for over 25 year olds from April 1st next year. The increase may force Santa to increase toy prices or consider making redundancies.

If Santa opts to engage self-employed elves on a contracted basis, there are no employee rights to worry about but he still needs to be conscious of HMRC issues particularly if the elves don’t work for any other employers. Health & Safety and discrimination issues also need to be taken into consideration.

Employing elves on zero hours contracts is also an option, however with no mutuality of contract, the elves could opt to choose whether or not they accepted any work that Santa offered. They would also be free to accept work from any other employer and this may not suit Santa who would probably want a greater degree of certainty over the available workforce, particularly when toy demand is high.

For help, support and advice managing your team of elves, call us on 01452 331331 or e-mail info@hrchampions.co.uk

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22 December 2016, 23:09
 

Frustration of Contract

#HRFridayFact: Frustration of contract is the one reason to end employment that you wouldn’t have a clause in your staff handbook for

Although it isn’t used very often to bring a contract of employment to an end, it’s worth knowing about frustration of contract as a way of ending employment when it is impossible for that contract to continue.

Only unforeseen circumstances may give rise to frustration of contract being considered, and include imprisonment, death or a severe and devastating illness. It is by virtue of the fact that these circumstances are unforeseen that a clause would not appear in a contract or handbook. If a clause did appear then the circumstances would have been foreseen, thereby nullifying the use of frustration as a reason to end the contract.

In a frustration scenario, no blame is attributed to either party and there is no notice period. The contract simply ceases to be in effect and neither party may sue for breach.

For fairly short imprisonment terms, it may be difficult to argue that the contract is frustrated, particularly if the employer has ever maintained an employee on long term sick leave for a term of the same or more than the prison sentence. Or if the sentence was for less than the employee’s notice period.

In other words, you couldn’t use frustration of contract as a reason to end employment, just because you didn’t like the fact that your employee had been sent to jail.

In sickness absence, the condition must be deemed as very serious with no prospect of recovery and for which reasonable adjustments are not enough to enable the employee to continue working for you.

The case of Warner vs Armfield Retail & Leisure Ltd [2012] is the referenced case law here where Mr Warner suffered a severe stroke. Medical evidence suggested he would never regain his full capability to fulfil his previous role and so a Tribunal ruled that his employer could treat his contract as frustrated with an Appeals Tribunal upholding the ruling.

Because of the amount of legislation that exists to protect employees, Frustration of Contract is a rare occurrence. It’s useful to know of its existence when the unforeseen happens, but we would strongly recommend that there is absolutely no other course of action you can take before considering it; and never end a contract by reason of frustration without first consulting professional advice, from us for example.

For support and advice with all aspects of HR and Employment Law, call us on 01452 331331 or e-mail info@hrchampions.co.uk

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15 December 2016, 16:38
 

The Christmas Party

#hrfridayfact: When organised through work, your Christmas party is an extension of work so ensure employees maintain the same standards

Even when held off-site and outside normal business hours, your work’s Christmas Party is deemed as an extension of work. Your staff should be clear that behaviour that is considered to be unacceptable in the workplace, such as sexist remarks or intimidating conduct, will be treated with equal gravity if it occurs at the party.

Rewarding your team for their hard work throughout the year is a good thing to do, and Christmas presents an obvious opportunity to do this. It makes sense to take advantage of the festive atmosphere and a party or event can also work as a team building exercise.

However employers must continue to take their responsibilities towards their employees seriously, particularly when your employees are together in an out-of-work environment and alcohol plays a part.  Follow our tips to help ensure your Christmas event goes without a hitch.

  • No-one wants to be a killjoy, but prior to any event it’s a good idea to communicate to all staff to remind them that they will still be under work ‘rules’ and to lay out what constitutes unacceptable behaviour.
  • Make sure that anyone who chooses not to attend the party for whatever reason isn’t disadvantaged. If partygoers get extra time off work make sure that non-partygoers get time off too, even if it’s taken at another time.
  • Whilst Christmas is a Christian Religious festival, the Christmas party should be seen as morale booster or team building event whereby employers thank their staff for their hard work and loyalty. As such your celebrations should be designed to include all staff and so should cater for different religions and beliefs
  • Alcohol is likely to feature in most parties and with it comes its own raft of complications. Making soft drinks available should go without saying but if your venue of choice is a pub, its association with alcohol may prove offensive to some.
  • Think about briefing speakers or entertainers beforehand to ensure that their material is suitable and won't cause offence or breach the Equality Act 2010.
  • People can become less guarded about what they say or do after a drink or two. Even if it’s not intended to be malicious or offensive, a throwaway comment or action by a member of staff can still be received as such by another. As an employer you have a duty of care to protect your staff from inappropriate behaviour from other staff.
  • Consider the risks attached to accepting offers from employees to provide food; not just food poisoning but religious and allergy issues too. Sticking with external venues and caterers may be a safer option.
  • The combination of drink and a party atmosphere may lower inhibitions and lead to a brief encounter under the mistletoe leading to embarrassment at work the day after. Worst case scenario could be dealing with allegations of sexual harassment. Better to bin the mistletoe.
  • Your duty of care should extend to getting staff to and from the venue safely. This may mean organising taxis or buses so that no-one is tempted to drink and drive.
  • You may want to time the party to minimise impact on workers the following day. If you employ drivers for example, a Friday night party will mean staff are less likely to need to drive the following morning when they might still be under the influence of alcohol.
  • If you plan to dock worker’s wages for failing to turn up for work or for turning up late, make sure that clause exists in your staff handbook or contracts of employment or you may expose yourself to a ‘Breach of Contract’ claim.

Despite these considerations, remember to enjoy yourselves and have a good time; which will be easier to do if your party runs incident free.

For support with implementing anything mentioned here, or for help dealing with the aftermath of your Christmas Party, please call us on 01452 331331 or e-mail info@hrchampions.co.uk

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08 December 2016, 15:24