on telephoneEmployment Law Advice

HR & Employment Law advice available via our retained EmployerGuard service or pay on demand...
Find Out More »

Training

We provide an array of management development training that we have developed as modules...
Find Out More »

signing a contractContracts & Handbooks

We can either review your existing contracts & handbooks or create new, bespoke documents...
Find Out More »

On-Site HR Projects

Project work including restructuring & disciplinary investigations can be safely outsourced to us...
Find Out More »



Passing Probation

#HRFridayfact: Passing a probationary period doesn’t make employees sack-proof although a disciplinary process may become appropriate

It’s a misconception that once a new employee has passed his or her probationary period that they suddenly become dismissal-proof or gain special rights. It’s correct for an organisation to use probationary periods as a management tool, though they are not a legal requirement.

If your probationary process is properly executed then the need to sack someone after their probation should raise questions within your organisation. When it does happen though, best practice suggests that a disciplinary process may be the best route to take, although not necessarily.

Probationary periods are usually set for three months as this seems to be a fair period of time to make an assessment of an employee and is the timescale adopted by most. Shorter or longer periods are perfectly acceptable and should be driven by the particular job.

Throughout the probationary period, the employee should undergo a properly planned induction process and receive regular feedback. Leaving someone to their own devices followed by a judgment at the three month mark isn’t really fair. The employee should be made aware whether or not their performance is meeting the required standard during the probation period and given the opportunity to amend it if it isn’t.

If, at the end of probation, the employee still hasn’t reached standard but the employer can see that there is potential to do so, an extension of the probationary period may be a suitable course of action.

Whether the probationary period is passed or extended should be confirmed in writing so that the employee knows where they stand and no assumption of passing probation is made.

We have often received calls to our helpline to ask us how to deal with a member of staff whose performance has dropped following the end of their probation. We usually recommend a course of performance management but full employment rights are not achieved until two years’ service, so a simple dismissal is always an option until then. This is unless there are any discrimination risks as there is no length of service eligibility for a discrimination claim.

For further help and advice with probationary periods and induction programmes, call us on 01452 331331 or email info@hrchampions.co.uk

0
13 May 2016, 13:25
 

Disclosing Medical Conditions & Disability

#HRFridayFact: Job candidates don’t have to declare disabilities so a health questionnaire should be issued once a job is offered

During the recruitment process, applicants are not required to disclose any disabilities that they have, so once a job offer is made the employer should ask the new recruit to complete a health questionnaire so that any reasonable adjustments can be made.

One of the ways that the Equalities Act has tried to overcome disability discrimination is to do away with any required declaration of a disability from job application forms. Thereby removing any opportunity for the recruiting company to consider disability in their selection process; including decisions made unconsciously.

Job offers are usually made with some conditions. Commonly, the receipt of satisfactory references and proof of right to work. It’s usual to send out the Health Questionnaire along with the offer letter but the results of the questionnaire should not be a condition upon which the job offer is made.

Once the completed health questionnaire has been received back by the company, due consideration should be given to the answers and an assessment made as to whether any reasonable adjustments are required for the new employee to complete their job function. Remember that reasonable adjustments include flexibility in working times and locations as well as physical changes to the workplace.

It may be necessary to write for a doctor’s report for further information regarding the employee’s condition. In such cases, remember that a medical consent form first needs to be obtained from the employee. You may need to meet with him or her to discuss the medical report and any potential adjustments. You can download a medical consent form template from our website.

Of course, if it transpires that a medical condition or disability affects the employee’s ability to do the job safely and without putting their own or their colleagues’ or customers’ health at risk, then there are grounds to withdraw a job offer for capability or safety. However, make sure that all reasonable adjustments have been considered and discussed with the prospective employee and that you record your considerations and discussions.

As a final note, we would advise that you should always recruit the best person for the job, and don’t change your opinion of their ability based upon their medical questionnaire.

For further support with recruitment and employee health and capability issues, call us on 01452 331331 or e-mail info@hrchampions.co.uk

0
06 May 2016, 13:20
 

Paying for Medical Appointments

#hrfridayfact: Employers are not obliged to pay staff whilst absent for medical appointments unless it is a pregnancy related appointment

Most employers will allow their employees a few hours of paid leave here or there to enable them to keep medical appointments such as a doctor, dentist or physiotherapist. However there is no obligation on the employer’s part to do so. 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 should remember that they have a duty of care towards their employees, so if a member of staff requires some time off for medical attention or therapy then it should be allowed. However the employer is entitled to withhold payment for the time that the employee is not working for them.

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 long term course of therapy, 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.

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

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 approach can be included in the company’s staff handbook so that it is recognised as normal company practice.

For help managing absence, including long term absence or persistent absence, call us on 01452 331331 or e-mail info@hrchampions.co.uk

0
29 April 2016, 14:35
 

Carrying Over Holidays

#HRFridayFact: In order to request carrying over untaken leave to the next holiday year, workers must have had a leave request declined

Statutory holiday for workers in the UK is 28 days including public holidays. Unless their contract differs, workers lose their right to their holiday if they do not make a request to take it. If a request is made and declined, then the employee can negotiate with their employer to carry it over to the following holiday year.

The Working Time Directive, handed down from the EU provides that full time UK workers get a statutory 20 days of holiday per year. The UK Government adds a further eight public holidays (usually), so effectively the statutory entitlement is 28 days.

To be entitled to their holiday, workers must claim it by making leave requests to their employer. Failure to ask for leave by the end of the holiday year means that it is simply lost. However, if an employee asks for leave and it is declined by the employer for whatever reason, the employee can then ask that up to eight days (more if the employee receives more than statutory) are carried over to the next holiday year. The employer must be in agreement to do this.

It’s fair for an employer to expect his or her employees to plan their holidays and to accept a degree of negotiation over dates. There is a business to run after all and strictly speaking, the employer is perfectly entitled to dictate exactly when staff take their holiday.

On the other hand, the employer also needs to take a view on their employees’ health and wellbeing and so should play an active part in ensuring that all workers have a fair opportunity and are actively encouraged to take their holiday entitlement. A good business will know when busy periods occur and so should be able to communicate any “no leave” periods with plenty of notice.

The decision to carry over any holiday ultimately rests with the employer but we recommend that there is a clause inserted in the company staff handbook to clarify what the position is regarding this.

Consideration should be given to the consequences of allowing holiday carry over. Those days will become payable if the employee leaves, for example.

Finally, workers who are unable to take their leave entitlement due to being absent under maternity or sick leave are allowed to carry over some or all of the untaken statutory leave into the next leave year. An employer must allow a worker to carry over a maximum of 20 days if the worker is off sick and therefore unable to take their leave.

Holiday leave issues can cause some real headaches for some employers, so why not let us take away the pain. Call us with any problems on 01452 331331 or email info@hrchampions.co.uk

0
22 April 2016, 13:25
 

Employment Law After Brexit

HRFridayFact: The Minimum Wage is UK Law so will remain in the event of a #Brexit The Working Time Directive is EU law so could be scrapped

If the UK votes to leave the EU on the 23rd June, some aspects of UK Employment Law that are as a result of EU directives, such as the Working Time Directive, could be repealed. Other laws, which have been initiated in the UK, such as the National Minimum Wage and National Living Wage would remain.

A complaint from members of the public regarding the forthcoming referendum on the UK’s continued membership of the EU that there is a lack of facts to enable people to make an informed decision. This is largely because nobody really knows what the UK or the EU would look like whether we leave or remain.

Equally, in terms of UK Employment Law nothing is truly guaranteed, although we can form some informed opinions as to what might happen; and initially this is likely to be nothing much.

Despite the fact that we will have a two year notice period to negotiate the terms of our exit, many of the laws that have come into effect as a result of EU Directives work to the benefit of employees. Their sudden withdrawal therefore would likely create discord amongst the workforce potentially leading to low morale, protests and even strikes.

Imagine the reaction from employees if their rights to holiday pay were withdrawn.

Some UK legislation has been implemented completely independently of the EU and its repeal as a result of our exiting Europe is implausible. It could still be overruled by Europe if we stay in however. Such legislation includes.

  • The National Minimum and Living Wage
  • Unfair Dismissal
  • The right to strike

Laws that have been implemented as a result of EU legislation and therefore have potential to be repealed include:

  • The Working Time Directive
  • Parental Leave
  • TUPE
  • Equal pay
  • Collective Redundancy Consultation
  • Protection for Part-time and Temporary workers

The Working Time Directive is seen to be the most costly legislation for UK employers to implement and continues to evolve. It was only earlier this year that a European ruling held that field based employees should count travelling to their first and from their last appointments as working time.

The only certainty regarding any EU directed UK laws is that if we remain in Europe, they too will remain. More may follow.

If we leave, then we must hope that common sense will prevail; that the good laws will stay and the less favourable ones will be scrapped. It’s unimaginable for example to think that the ban on smoking in indoor public places will ever be repealed.

We’ll have fresh opinions on the 24th  of June of course, but in the meantime, if you have workplace issues that involve UK Employment Law as it stands, then do call us on 01452 331331 or e-mail info@hrchampions.co.uk

0
15 April 2016, 12:38
 

Making Redundancies Safely

#hrfridayfact: In restructuring situations, using a system which scores employees’ abilities to identify redundancies is both fair and safe

Businesses often have to remodel and re-shape to accommodate growth or to react to shifts in economic conditions. If this results in redundancies, “last in, first out” isn’t an acceptable strategy and businesses should use a system that fairly scores employees’ abilities against the skills required to fulfil the available positions.

In all redundancy situations, the key point to remember is that it is positions that are made redundant and not people. Therefore, where a position is identified as being redundant and more than one person is currently employed who can fulfil it, operating a fair selection process is paramount.

An example might be an organisation that employs 10 engineers or telephonists or roofers, and established that employing just 8 suits the needs of the business; meaning two redundancies are required. In such circumstances, all 10 employees would have to be put ‘at risk’. In other words, the two employees who lose their jobs cannot simply be chosen. A fair selection process must be followed.

Last in first out simply isn’t viewed as a fair selection process, neither is drawing lots, selection based on the lowest cost to exit or whether or not someone is perceived as a difficult person. We recommend employees are scored against a ‘selection matrix’ that awards points for each requirement of the position including skills, qualifications, track record and experience. This could include minus points for poor attendance and any disciplinary history. The lowest scores are those who are dismissed.

The selection matrix should be used whenever there is more than one person at risk for the same or similar position. This might extend across an entire organisation which has multiple sites.
Finally, make sure you can prove your scoring matrix is fair and does not favour or discriminate against any individual or group. A redundancy situations that can be construed as an excuse to exit a specific employee could lead to an unfair dismissal claim so it’s crucial that your process is flawless.

For further help and support with making redundancies contact us on 01452 331331 or e-mail info@hrchampions.co.uk

0
08 April 2016, 13:10
 

No Notice Payment for Gross Misconduct Dismissals

#HRFridayFact: If not summarily dismissed for gross misconduct employees receive a statutory or contractual notice period or payment in lieu

Summary dismissal for gross misconduct is the one occasion whereby an employee is dismissed from an organisation without any rights to work any period of notice or receive payment in lieu of a period of notice.

We’ve covered payments in lieu of notice (PILON) in some details in a previous blog post, but to summarise: It’s a payment made to an employee when he or she leaves an organisation to cover their contractual notice period without them actually working it.

The alternative is for the employee to actually work their notice period which may range from just a week to any number of months.

For cases of gross misconduct however, the employee loses their right to any period of notice and their final pay is calculated from the day of dismissal. They no longer work for the company from that point and they will only be due pay up until that point. Final pay should still include any accrued holiday however; or a deduction for any holiday that has been taken and not accrued.

Remember that gross misconduct leading to summary dismissal is not an excuse to forgo a proper disciplinary process. Offending employees still need to be invited to an investigatory meeting, even if it is held immediately after the offence. Reasonable notice must then be given for a subsequent disciplinary hearing; we recommend at least 48 hours. Don’t forget to offer representation too.

If you’re planning to suspend the employee between investigation and disciplinary meetings, we advise that this is done on the grounds that they are a risk to the business if they remain on the premises. Tribunals take a dim view of suspension these days if there is not a really good reason.

We provide a list of examples of gross misconduct in the staff handbooks that we provide for clients, but some of the more obvious offences include:

  • Theft of company property or of fellow workers’ possessions
  • Sleeping on the premises
  • Fraud, bribery or falsification of records
  • Fighting or Physical Assault
  • Malicious damage to Company property
  • Possessing and/or taking illegal drugs on Company premises

Finally, don’t forget that you must still offer the right to appeal any decision and this must be made clear to the employee including the process they must follow to lodge an appeal.

Organisations often use third parties to conduct investigation and disciplinary hearings as an outside view can be much more objective when forming a judgment on a case. It’s something that we’re really good at so if you need help and support or someone to outsource a disciplinary procedure to, call us on 01452 331 331 or e-mail info@hrchampions.co.uk

0
24 March 2016, 17:02
 

Changes to Contracts

#HRFridayFact: A pay rise, even for the National Living Wage is a change of terms, so an addendum or change of terms letter should be issued

The new National Living Wage for employees aged 25 and over takes effect for wages or salaries paid after 1st April this year. This will mean a change of contractual terms for affected employees so employers should issue an addendum to existing contracts where appropriate.

Strictly speaking, changes to contracts or contractual terms are subject to a period of consultation. However, in the case of the National Living Wage (NWL), affected employees are going to see a benefit by way of a pay increase so it’s very unlikely that any staff member is going to take action for a breach of contract if they haven’t been written to by the end of March.

Because the NLW is Government legislation, employers will not be exposed to any risk regarding age discrimination for its implementation. It will follow the same rules as the National Minimum Wage which is tiered relative to age. This means that even if you have employees doing exactly the same job, you may be paying them different wages purely because of how old they are.

Some employers may wish to increase everybody’s pay to meet the NLW and this course of action is entirely acceptable. Although discretionary, some employers may see a benefit in increasing everyone’s pay when balancing the cost against maintaining staff morale and alleviating resentment within the workforce.

For most employees, a simple addendum to existing contracts in the form of a letter will suffice to meet the consultation responsibilities. Something along the lines of:

This letter is to confirm that with effect from 1st April 2016 you hourly rate of pay will increase from £6.70 to £7.20. This change is in line with the Government’s decision to increase hourly rates for over 25 year olds and introduce a National Living Wage. This increase will be visible on your monthly payslips commencing Friday 29th April 2016.

Don’t forget that employees qualify for the National Living Wage as soon as they reach age 25 so make sure that you have a system in place to chart when pay increases need to be implemented.

The last few years has seen a lot of changes to Employment Legislation which requires the amendment of Employment Contracts and Staff Handbooks. We recommend that contracts and handbooks are reviewed at least every three years.

Contact us for a quote to review your HR Documentation or to provide new document templates entirely from scratch on 01452 331331 or e-mail info@hrchampions.co.uk


0
18 March 2016, 11:55
 

Notice for Disciplinary Meetings

#hrfridayfact: You should give at least 48hrs notice when inviting employees to disciplinary meetings. Failure to may invalidate any outcome

Disciplinary meetings should be part of your disciplinary process and as such should be a planned event rather than a spontaneous meeting. ACAS guidelines are that employees invited to disciplinary meetings are given reasonable notice and we recommend that reasonable is at least 48 hours.

A disciplinary meeting is one in which the conclusion of a disciplinary investigation is made; usually resulting in some form of disciplinary action. This can range from a verbal or written warning to dismissal.

We recommend that a disciplinary meeting is held even if no further action is to be taken, in order to draw a line under the event and bring closure to the matter.

There can sometimes be a temptation to move immediately to a disciplinary meeting when everything seems cut and dried at the investigation stage. For example if an employee admits to theft whilst being questioned or admits to just skiving off work during a return to work interview. Don’t make this mistake!

Failure to follow correct procedure effectively invalidates the outcome of the disciplinary process. Case studies show that an Employment Tribunal will simply throw out a case where procedure has not been followed; even where all the evidence is on the employer’s side. Reasonable notice is part of the process so don’t skip it even if your case is rock solid.

Reasonable notice is just one element of what a robust disciplinary process should contain. Others components, which you must also comply with include:

  • Allowing representation at the disciplinary stage
  • Ensuring the employee undergoing the process has a copy of all evidence
  • Right to appeal

Disciplinary processes are something you don’t want to get wrong as mistakes can be costly, especially if they get as far as Tribunal. As usual though we’re here to help and we have lots of experience in managing the disciplinary process. Just call us on 01452 331331 or e-mail us at info@hrchampions.co.uk if you have any questions.

0
11 March 2016, 13:26
 

Notification for Unplanned Absence

#hrfridayfact: Employers can dictate how and by when staff inform them of unplanned absence. We recommend text messages are not acceptable

If an employee is not going to turn into work for his or her shift, due to sickness or an emergency, employers are entitled to be very specific about the time by which they must be informed, who or what level of management must be told and the communication method used.

Staff absence impacts different organisations to different extents. For some, one or two staff members’ unexpected absence may not affect productivity significantly and their duties might be temporarily shared around other employees for a few days or simply wait until they return to work.

Other businesses and industries don’t have that luxury. An engineering firm’s entire productivity may be halted if a key component can’t be produced because it relies on a specific machine operator’s skills. Or a day nursery may compromise its child to adult ratio if they are unable to replace an absent nursery nurse at short notice.

The company policy regarding absence notification should be published in the organisations staff handbook and be clear and unambiguous.

It should state the time by which the company should be informed of unscheduled absence, eg within 30 minutes of the commencement of the employee’s shift or even prior to the shift starting. It should also state who should be informed; the employee’s line manager or their equivalent or superior if the line manager is unavailable.

We further recommend that the policy states how the employee should communicate their absence and this should be by telephone. Allowing notification by text or e-mail relies too much on the recipient’s computer or phone being switched on or charged and the e-mail or text message being addressed correctly or sent to the correct number.

Policies should even go as far as to actually exclude the use of e-mail or texting to notify of absence so that there is no doubt. Whilst you are at it you may also want to exclude using social media platforms like Facebook.

If you are making changes to your staff handbook to incorporate a stringent absence notification policy, ensure that your employees are made aware of the changes and have access to a copy of the document. As usual, if you need any help with your contracts or handbooks or implementing policies and procedures in the workplace, we’re available on 01452 331331 or at info@hrchampions.co.uk

0
04 March 2016, 15:30