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Time Off for the Nativity Play

HRFridayFact: Unlike emergencies employees can’t expect time off for their child’s Nativity play. But be consistent with discretionary leave

A Nativity play isn’t an emergency so there is no obligation for an employer to allow his or her employees time off work to go and watch their child’s performance. However if employers do discretionarily allow their staff to take time off, they should ensure that the policy is applied consistently throughout the workforce.

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, by virtue of the fact that it is a Nativity play, it would be during the festive season. (Goodwill to all men and all that)

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 although it would be unreasonable to break holiday down to hours to accommodate occasional 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 Nativity duties. As the impact on the business is likely to be negligible, the absence may be simply overlooked. However it may disgruntle other employees if this time off is paid and no equivalent time off is offered.

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

04 December 2015, 15:01

Statutory Terms of Employment

#HRFridayFact: In an employment contract, statutory terms or rights can be enhanced but cannot be diminished, lessened or taken away.

To protect workers, the law lays down certain terms that are an entitlement to all workers as a minimum. Such terms are classed as statutory and whilst they can be enhanced or improved upon by an employer, they cannot be made less beneficial or worse than the statutory minimum.

As suggested by their title, statutory terms of employment are set by “statute”. In other words, they are imposed, varied or regulated by an act of law that has been passed by Parliament.

An employer is entitled to improve upon or embellish a statutory term of employment as much as he or she wishes and might have good cause to do this. The most likely reasons might be to attract and retain the very best staff.

A good example of a statutory term that is often enhanced is holiday entitlement. The statutory minimum annual holiday for a full time worker in the UK is 28 days including bank holidays. An employer can choose to increase this entitlement to any number of days per year above this, but he cannot reduce this minimum entitlement or take holiday days away.

Enhancements can also be made on an individual basis, even for the same level of job. So two workers holding identical positions could have different pay, holiday and sickness pay, although it might be unethical to do this in practice.

Statutory terms often have a qualifying period before they come into force, or change depending upon the length of service. There are around 30 statutory terms or rights. Some of the more pertinent ones are:

  • The right to be paid at least the national minimum wage.
  • The right to 28 days per year paid holiday. Pro-rata for part time staff
  • The right to time off for trade union duties and activities although  This time off does not necessarily have to be paid
  • The right to maternity, paternity and/or adoption leave OR Paid maternity, paternity and/or adoption leave after a qualifying length of service
  • The right to unpaid shared parental leave or paid shared parental leave after a qualifying period
  • The right to sick pay following a qualifying period of employment and after qualifying period of sickness
  • The right to ask for flexible working, although it may not necessarily be awarded
  • The right not to be discriminated against
  • The right to notice of dismissal. This is subject to one month’s service and varies thereafter depending on the length of service
  • The right to claim redundancy pay if made redundant after two years’ service
  • The right not to suffer detriment or dismissal for whistleblowing on a matter of public concern at the workplace

These terms should be considered as non-negotiable as a minimum.

Some will feature in your employment contracts whilst others will be better placed in your company handbook. We will look at these in another blog but of you need support in the meantime please call us on 01452 331331 or e-mail info@hrchampions.co.uk

27 November 2015, 14:32

Pay in Lieu of Notice or Garden Leave?

#HRFridayFact: To enforce either Garden Leave or Payment in Lieu of Notice, you must have an appropriate policy in your staff handbook

Both Garden Leave and Payment in Lieu of Notice are outside the statutory terms under which an employee stops working for a business. Therefore to enforce either, you must have the relevant clause either in their individual’s contract or in the company’s staff handbook.

When an employee leaves your business, whether because you have dismissed them or through their own volition, you may want to maintain a degree of control over when and how they actually finish working for you. Are you happy to let them go there and then? Or do you want to keep some tabs on them for a while even if you don’t necessarily want them on the business premises?

In the majority of circumstances you will probably want the employee to work out their notice period, which may vary from one week to several months. The notice period may be driven by how easy or difficult it is likely to be to replace somebody in that position, with the skills required to do the job. Having the employee work their notice also allows for a period of handover if you are lucky enough to find a replacement before the existing worker leaves.

In some circumstances, you may be happy to let the employee go and just be glad that they will no longer be on your premises. Here, Payment in Lieu of Notice, or PILON, may be the best option. You pay the employee for whatever their notice period is, allowing for accrued holiday, and you simply part company with no further obligation on either party. Their leaving date is the day you agree they leave, not including the notice period.

Under the terms of Garden Leave the worker remains an employee of the company but is not required to attend the workplace, and is effectively allowed to stay at home and tend to their garden; giving this type of arrangement its name. He or she remains on the payroll until the final day of their notice period, so if the notice period is say, three months, regular salary payments will continue to be made and company benefits remain in place. Equally, the employee must make themselves available for work if required during this time.

The Garden Leave option will most likely be used when the employee has a specialist role and you want to retain the option to call upon their skills or knowledge; or because the employee is moving to a competitor and you want to restrict the competitors access to him or her whilst also restricting the employees access to your own intellectual property.

You can have one or both clauses in your documentation and we would recommend that you do to give you the options, even if you don’t use them.  Trying to enforce these terms without having them in writing however can amount to a breach of contract.

If you would like us to review your Employment Contracts or Staff Handbooks then please give us a call on 01452 331331 or drop us an email to info@hrchampions.co.uk and we would be delighted to discuss making some recommendations for you.

20 November 2015, 14:59

Employee Accrued Rights

#HRFridayFact: To take an employer to tribunal, an employee with less than 2 years’ service must have a claim linked to discrimination

In Law, employees need to work for an employer for two years before they accrue any rights including the right to appeal a dismissal decision. This goes out the window however if there is a link to discrimination, for which a tribunal claim can be made at any time.

At HR Champions, we share a view with ACAS when it comes to dismissal in that, once an employee has passed his or her probationary period, a proper process should be followed if a reason to dismiss arises. If you have managed the probationary period effectively then it should be a fairly substantial reason that warrants disciplining and potentially dismissing an employee anyway.

Therefore it is best practice to conduct a full investigation to ensure that everyone’s views and evidence is taking into account. This means holding full and proper meetings, taking notes and offering representation where appropriate.

Strictly speaking, it is possible to simply dismiss an employee who has less than 2 years’ service without giving a reason.

This can be a dangerous option however because if the employee feels that they have been dismissed owing to one or more of the protected characteristics under the Equalities Act, then they have the option to raise a tribunal claim, regardless of their length of service. If this happens and you haven’t followed a proper process, you might have a hard time justifying the dismissal to a tribunal judge. And remember, tribunal awards for discrimination are unlimited.

It may feel that going through a proper process is an irritation and a drain on resources, but just keep reminding yourself that it will be a lot less trouble than a tribunal hearing. Disgruntled employees and “no win, no fee” lawyers will be tempted to look at any aspect that will cause trouble or win a case so managing a dismissal properly is a small price to pay.

For further help or advice with any of the issued raised here, please call us on 01452 331331 or e-mail info@hrchampions.co.uk

13 November 2015, 14:13

No Hiding in Discrimination Cases

#HRFridayFact: Employees who discriminate could be liable to a fine where their employer has a firmly entrenched equal opportunity policy

If an organisation can prove that they have taken reasonable steps to implement their Equal Opportunities or Dignity at Work Policy, then a claim for discrimination can be passed onto the offending employee

Under the Equalities Act, awards for discrimination against the protected characteristics of gender, sexual orientation, race, age religious belief, disability claims are unlimited. Since the Act’s inception, there have been many high profile cases against organisations with single awards reaching a staggering £4.5million.

However, if a business can prove that they have taken reasonable steps to implement policies that safeguard against discrimination, and have created a non-discriminative organisational culture that is “lived and breathed”, then acts of discrimination can be attributed to the offending employee. Any fines or awards would then also be attributed to the individual who be liable to pay.

In other words, employees cannot hide behind the company and could find themselves exposed to prosecution for offences perpetrated in the workplace.

An example of this might be an employee who is victimised by her boss because she is female and, feeling her position is untenable, chooses to leave but then raises a constructive dismissal claim. The claim would initially be made against the company. If it could be proved however that the correct training had been provided by the company to the offender and that otherwise, throughout the organisation a non-discriminative culture exists, the business would have a strong argument that it was not at fault. If the employee who made the claim wins the case then the liability would rest on the shoulders of the victimising boss. This could be a very costly outcome.

Cases do exist where line managers were personally fined so this outcome is more likely than you might think. So, make sure your Dignity at Work Training has happened and been recorded and that your relevant policies are up to date.

For help or advice with the issues raised here you can call us on 01452 331331 or email info@hrchampions.co.uk

06 November 2015, 14:54

Best Behaviour on Halloween

#HRFridayFact: It’s Halloween but watch your conduct. Even if it’s meant as fun intimidating behaviour could breach your harassment policy

We don’t expect to hear of “trick or treating” around different departments at work, but occasions such as Halloween may give rise to some high jinks or tomfoolery in the workplace. Remember though that it is how behaviour is received rather than its intent which determines if it breaches your organisations bullying and harassment policy.

We have commented before how behaviour is a subjective topic. What one person perceives as general banter or light-hearted fun may not be regarded in the same way by others. It may be seen as harassing or even bullying behaviour.

The law also take this point of view and will err on the side of the receiver in cases of bullying and harassment. People can be very hurt or offended by another’s words or actions but by virtue of the fact that they are intimidated, they are unlikely to do or say anything about it at the time. At a later stage however, the offender may be surprised to find themselves on the wrong end of a complaint. An excuse that there were no objections at the time won’t offer much defence; but it’s easy to see how situations like this might arise.

If you feel that there may be a danger of behaviour getting out of hand, it might be a good idea to pre-empt it and perhaps remind employees of your Bullying & Harassment and Dignity at Work policies. A few posters might do the trick or a companywide e-mail. Take a blanket approach however and treat everybody across the organisation equally. You don’t want to be the subject of a harassment claim yourself for targeting one or two individuals.

If a complaint does arise then take it seriously and follow a proper procedure. This may result in disciplinary action, the extent of which will be determined by various factors including severity of the complaint and whether it has happened before. Remember that it’s not always outward and aggressive behaviour or name calling that can be considered bullying.  Exclusion and persistently ignoring others can cause equal offense.

Behaviour within an organisation is often culturally led. People follow the behaviour of others to fit in and be accepted. This may even stem from senior management so it’s best practice to have a Bullying and Harassment policy in place that everybody is aware of and is expected to adhere to. We would recommend that Dignity at Work training forms part of an employee’s induction programme.

If you are interested in reviewing your own organisations Bullying and Harassment Policy or if you feel some Dignity at Work training might be a good idea, please get in touch. We have policies, procedures and fact sheets available and we can deliver company-wide training that explains the cause and effects of bullying and harassing behaviour.

Call us on 01452 331331 or email info@hrchampions.co.uk for further information.

29 October 2015, 13:47

Contractual vs Statutory Terms

#HRFridayFact: A new contract of employment should be issued if any changes to an employee’s contract occur. eg pay or holiday entitlement

An employee’s contract of employment determines the terms under which an employee works for their employer in exchange for payment. Therefor any changes to these terms should be reflected in the contract and a new contract issued each time a change is made.

The terms under which a worker is employed fall under two headings; Statutory and contractual.

Statutory terms are those that affect all workers and are set out in law. Some of these are easy to identify, such a statutory maternity pay (SMP) and statutory sick pay (SSP).

We always recommend that statutory terms and those that apply across the entire workforce are included in the company staff handbook. This minimises paperwork when there is a change in statutory law. So as well as statutory terms, a staff handbook might include procedures such as disciplinary & grievance and absence; break times and company policies such as Internet policy and Health & Safety policy.

Contractual terms are those that apply to specific employees so these are the terms that will differ between employees. These will include the job title, hours of work, remuneration and access to company benefits etc.

Changes to contractual terms means therefore that the employee is working under new terms and so a new contract reflecting the changes should be issued.

An example of where a new contract should be issued is the recent changes to the National Minimum Wage, (NMW). Any employees who are paid the NMW would have received an increase from the beginning of October. If the rate of pay is stipulated in the contract, eg £6.50 per hour, then a new contract with the new rates should be issued.

If on the other hand the contractual clause read something like “You will be paid at the prevailing National Minimum Wage rate for your age”, then no new contract need be issued. The increase in pay will still have to be made of course.

We recommend that contracts and handbooks are reviewed regularly to ensure they comply with statutory law and cater for wider changes that should be considered such as Internet and Social Media usage. If you would like to discuss a contract and handbook review then simply call us on 01452 331331 or e-mail info@hrchampions.co.uk

23 October 2015, 14:11

Settlement Agreements for Terminating Employees

#HRFridayFact: A settlement agreement can preclude employees from making tribunal claims about any type of incident listed on the agreement

Settlement agreements usually come in to play to simplify termination of an employee’s contract. They are legally binding and normally involve a payment made by the employer to the employee in return for a promise that the employee will leave the company and no further action or tribunal claim will be pursued.

Sometimes, performance managing an employee may be assessed to be time consuming and costly, or have a poor potential chance of success. Or there may be a dispute in the workplace that offers little hope of an employee’s position remaining tenable. In such cases, an employer may consider a Settlement Agreement in order to circumvent a lengthy performance management or mediation process.

What is a reasonable amount to pay somebody to effectively just ‘quietly go away’ will vary dramatically depending upon the circumstances, the employee’s normal pay and their position within the organisation. A business wishing to exercise a settlement agreement must of course also be in the luxurious position of having (probably) several thousand pounds available as a lump sum.

For a Settlement Agreement to be legally binding it must be in writing and contain the applicable statutory conditions that regulate Settlement Agreements and it must relate to a particular complaint or proceedings.

Furthermore the employee must have received advice from a relevant independent adviser, such as a solicitor or a certified and authorised member of a trade union who is insured or professionally indemnified against the risk of a claim by the employee in respect of any loss arising from the advice. The adviser must also be identified on the agreement and a reasonable period of time should be allowed to consider the agreement. ACAS recommend 10 calendar days.

Correct wording and processes still need to be adhered to when formulating a Settlement Agreement so we would still recommend that you talk to us for advice to ensure you don’t leave yourself exposed to any risks. Particularly if you are undertaking your first agreement. It’s also worth remembering that a Settlement Agreement can be suggested by either the employer or the employee.

Finally, Settlement Agreements aren’t for everyone. There needs to be an appetite or culture within the organisation for handling workplace people issues in such a way. Therefore they aren’t a course of action we recommend very often and following our general advice around best workplace practices should minimise the need for considering a Settlement Agreement from ever arising.

For help or support with any of the issues raised here, please call us on 01452 331331 or e-mail info@hrchampions.co.uk

16 October 2015, 12:08

Maximum Weekly Working Hours

#hrfridayfact: The Working Time Directive includes hours worked for different employers. You should check if employees have other jobs.

With some exceptions and unless opted out, under the Working Time regulations, employees can’t work more than 48 hours per week. The 48 hours includes all jobs that an employee does, and for all employers so it’s wise to check whether any of your employees have other jobs.

It is ultimately the employee’s responsibility to tell the employer if they have any additional work, but for the sake of simply asking for a declaration, we recommend that employers instigate the conversation. In most cases, working a few additional hours every week elsewhere is unlikely to have any effect unless the employee already works close to the limit. It may create a problem if you were to have a sudden or urgent need for your staff to increase their hours.

Calculations for working hours is usually based on the average of a rolling 17 week period, so it’s the average hours worked per week over the previous 17 weeks.

The Directive classes work as:

  • Job-related training
  • Time spent travelling if you travel as part of your job, eg sales rep
  • Working lunches, eg business lunches
  • Time spent working abroad
  • Paid overtime
  • Unpaid overtime you’re asked to do
  • Time spent on call at the workplace
  • Any time that is treated as ‘working time’ under a contract
  • Travel between home and work at the start and end of the working day (if you don’t have a fixed place of work)

If a member of staff works 40 hours for you and then a couple of nights per week behind the bar of their local pub, then it’s easy to see how they can quickly reach their maximum hours under the Working Time Directive. However, the self-employed are not covered by the Directive so an employee who also had his or her own window cleaning round every morning before work not be affected.

There is always the option to ask staff to opt out of the Working Time Directive which would entail them simply signing a declaration. They are at liberty to refuse however and there must be no unfair treatment for anyone who chooses not to opt out.

They can also choose to opt out for a limited period. This may be a good solution if the requirement for your staff to work above 48 hours per week is temporary, to complete a specific contract for example.

09 October 2015, 14:49

Conditions Not covered by the Equality Act

#HRFridayFact: Tendencies to steal, set fires or to physically or sexually abuse others are not conditions covered by the Equality Act 2010

When disciplining a member of staff, to avoid discrimination issues, employers should consider whether the employee’s behaviour is as a result of some mental health issue which might be covered by the Equality Act 2010. Stress for example, may cause someone to behave irrationally or out of character leading to behaviour which may warrant consideration of disciplinary action, such as rudeness to a customer.

Some behaviours however, despite being recognised as medical conditions, are not covered by the Equality Act. These include kleptomania, the tendency to steal; pyromania, the tendency to set fires and the tendency to physically or sexually abuse others.

Whilst we hope that businesses do not suffer from their property being routinely set alight by staff, the more practical side of this ruling means that employees are not able to hide behind the Equality Act should they steal from their employers or their employer’s customers. Neither can they cite the Equality Act as defence in cases of bullying and harassment of other members of staff.

Consequently, businesses should not need to fear a discrimination claim on these basis.

Alcohol, nicotine and non-prescribed drug dependency are not covered either under the Equality Act which means an employer may be able to use these as reasons for disciplinary measures if it affects the workers job or contravenes company policy, without the fear of discrimination claims. However, the effects of the addiction may be covered by the Act; for example liver disorder or depression.

It’s worth noting that to claim discrimination because the employee suffers from a mental health condition such as depression, they may have to prove the condition has a long-term and substantial effect on their daily life.

For support with the issues raised here please call 01452 331331 or e-mail info@hrchampions.co.uk

02 October 2015, 13:34