The right to request Time Off for Training

March 13th, 2011

The Department for Business, Innovation and Skills recently issued a Press Release announcing that the right to request time off for training is not going to be extended to all employees from April 2011.

The right to request time off for training was introduced for employees of large employers (250+ employees) in April 2010, with a view to it being extended to all employers from April 2011. The maximum penalty for an employer which failed to consider such a request is eight weeks’ pay. In November 2010, the government announced that employers with fewer than 50 employees would be exempt. The announcement today means that the right will not be extended as previously anticipated.

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Following a fair dismissal procedure

December 1st, 2010

As an employer, when you consider dismissing someone, it is not sufficient just to have a fair reason for the dismissal. You also need to carry out a fair procedure. Ultimately, you must be able to demonstrate that the dismissal was within the reasonable ranges of responses available to you. The ACAS Code of Conduct sets out some principles for fair disciplinary procedures but it does not apply to redundancy dismissals or the non-renewal of fixed term contracts on their expiry. If the employee has one year’s continuous employment – there are some limited exceptions to this rule -, the effect of failing to carry out a fair dismissal procedure could mean that you expose your company to the risk of an unfair dismissal claim being brought against it.

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Employment law alert

October 1st, 2010

Today sees the introduction of some key changes in Employment law which are well worth noting to ensure that your contracts and policies are in line with developments otherwise you could face costly tribunal claims.

1) National Minimum Wage Increases

From 1st October 2010 those aged 21 qualify for the full adult rate of NMW (National Minimum Wage). Previously the adult rate was payable only to those aged 22 or more (see Minimum Wage/2008 and 2009 increases).

The new rates in force from 1st October 2010 are:

£5.93 per hour for low paid workers aged 21 and over
£4.92 per hour for 18-20 year olds
£3.64 per hour for 16-17 year olds

Apprentices NMW
There will be an apprentice minimum wage of £2.50 per hour for apprentices aged under 19, or over 19 and in the first year of their apprenticeship. This will apply to apprentices on traditional contracts of apprenticeship, and employed apprentices on government-supported level 2 and 3 schemes. It will replace the minimum rate of pay of £95 per week that came into effect from 1 August 2009 for apprentices.

2) The new Equality Act is Introduced

The Equality Act today replaces all of the existing equality legislation and applies to the protected characteristics of age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation, pregnancy and maternity. The Act extends some protections and strengthens some aspects of equality law. As a result, employers may need to review and change some of their policies and practices.

Particularly noteworthy are the following changes:

Disability (new protection)
The Act includes a new protection from discrimination arising from disability by extending it to cover unfavourable treatment due to a factor connected with their disability (for example a tendency to make spelling mistakes arising from dyslexia). This type of discrimination is unlawful where the employer or other person acting for the employer knows, or could reasonably be expected to know, that the person has a disability. The defence of justification is likely to be difficult to establish in such cases.

Additionally, protection against indirect discrimination is extended to disabled people. So a job applicant or employee could claim that a particular policy disadvantages people with the same disability. Unless the policy could be justified it would be unlawful.

Health Questionnaires (prohibited)
The Act also includes a new provision which makes it unlawful, except in certain circumstances, for employers to ask about a candidate’s health before offering them work so it’s definitely time to review such questions in your standard recruitment documents.

Gender reassignment (new definition)
The Act provides protection for transsexual people. A transsexual person is someone who proposes to, starts or has completed a process to change his or her gender. The Act no longer requires a person to be under medical supervision to be protected.

Equal Pay
A sex equality clause will be read into contracts of employment to promote equality between men and women in pay and other contractual terms of employment for equal work and a similar sex equality rule will be implied into the terms of pension schemes.

The Equality Act makes so-called “secrecy clauses” unenforceable in an effort to help women discover whether they are unlawfully paid less than men for the same work, work of equal value or work rated as equivalent. (However, employers can still legitimately enforce secrecy clauses in respect of disclosure of pay rates to third party organisations such as competitors).

Differential treatment
There are some situations in which there is statutory authority to treat a person less favourably because of a protected characteristic such as:

where a job is only open to people with a particular characteristic
where services are intended to be restricted to people with a particular characteristic. **However this is by no means a blanket exception and employers and voluntary organisations should seek specialist advice before discriminating in this way.
where pregnant women are treated differently for their own protection
where people of a particular religion/belief are appointed to specified educational posts
If you require any advice in relation to today’s changes, please do not hesitate to contact us

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Employers concerned about cost and admin burden of Additional Paternity Leave

May 10th, 2010

Employers are concerned that the new Additional Paternity Leave (APL) rules will negatively impact their companies, according to law firm Davies Arnold Cooper.
The report shows 82% of employers surveyed think cost, absence or administrative burdens prove harmful.

The main employer concerns are cost of providing cover (35%), too many employees being absent (8%), administration costs (2%) or all of the above (48%)

But most employers (74%) think less than a quarter of eligible employees would take advantage of their new right to APL, which will enable new fathers to request up to six months’ paternity leave from April 2011 onwards.

The finding, that 64% of companies say at present less than a quarter of eligible employees in their organisations took any paternity leave, reinforces this.

When respondents stated they expected APL to be taken, half (53%) believed that employees would take less than one month of leave, while a further 43% believed employees would take no more than between one and three months.

Only 2% of respondents expect any of their employees to take the maximum six months available.

The self-certification process for the father concerned 76% of respondents, while 94% indicated they would prefer to be provided with information from the mother’s employer and a copy of the birth/adoption certificate automatically.

Whilst HMRC is going to undertake spot compliance checks, it does not seem that this sufficiently reassures employers. On a more positive note, 30% of respondents believed a benefit would be that mothers would return to work earlier and 42% also believed that greater flexibility in respect of childcare was advantageous to their organisation.

Wendy Trehy, partner and employment law specialist at Davies Arnold Cooper, said: “Despite the fact that there was a significant amount of consultation undertaken by the Government on the introduction of APL, employer opinion is divided and significant concerns remain. We will have to wait and see how many fathers do take up this right, what the costs to employers ultimately are and if this has the adverse impacts feared.

“Carefully tailored policies can eliminate many areas of concern; however, the cost to business will only be able to be assessed once we see how APL works with existing legislation.”

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‘Fit’ notes (Statement of Fitness for Work)

March 29th, 2010

Many people with health conditions can, with some basic support from their employer, work as they recover. For some employees, returning to work can often aid their recovery and their return can also benefit the employer by reducing sickness absence.

From the 6 April 2010 doctors will be issuing “fit notes” in the place of the outdated sick notes. Under the current sick note system, doctors can only advise their patient on whether their health condition means that they should or should not work. This system gives no flexibility and leaves little or no scope to achieve an earlier return to work.

The focus of the new Statement of Fitness for Work - “Fit Note” for short - is on what the employee may be able to do at work rather than what they cannot do. The doctor has the opportunity to advise whether the employee is “not fit for work” or “may be fit for work”.

If the doctor advises that the employee may be fit for work there are tick box options to suggest common ways to help a return to work such as a phased return to work, flexible working, amended duties and/or workplace adaptations. There will also be space for the doctor to provide more information on the condition and how it may affect what the employee does.

What is the impact on employers

Although it is a new form, many things will stay the same - the Fit Note can still be used as evidence for why an employee cannot work due to an illness or injury; the Fit Note is still not required until after the 7th calendar day of sickness; the information on the Fit Note is still advice to the employee and is not binding on the employer; the requirements of the payment of Statutory Sick Pay have not changed and the employer’s obligations under the Disability Discrimination Act 1995 (DDA) have not changed either.

When the employer receives a “may be fit for work” fit note it is not mandatory for the employer to act on the doctor’s advice. However, the employer should do (and ideally be able to evidence) the following:

1. Consider all of the advice and how it would affect the job and the workplace; and
2. Discuss the advice on the fit note and the options available with the employee.

If the employee and employer agree that it is possible to return to work, then they should agree a return date and any workplace adaptations. In relation to any adaptations, the employer may need to seek advice from an occupational health advisor. The employer should also carry out a revised risk assessment if they are making any adaptations or if the employee’s duties change to ensure that these do not introduce new risks. It should be explained to the employee that these arrangements are only temporary. The employer should monitor the return to work and review with the employee on a specified date.

If the employer and employee agree that a return to work is not possible then they should agree the next review date or a return to work date. The employer must pay sick pay as per contractual terms and/or Statutory Sick Pay rules.

If there is a disagreement the employer should suggest that the employee seeks advice from their trade union or an advice centre. The employee may raise a grievance if no agreement can be reached – there is a significant risk here under the DDA given the positive obligation to consider “reasonable adjustments”.

If there is an occupational sick pay scheme in place, it should be reviewed to check that anyone who does return part time is no less off than if they were still on sick leave (often an obstacle to a smooth, unhindered return to work). In addition, occupational sick pay schemes should make it clear that a person who is back at work on reduced duties or altered hours is no longer counted as being on sick leave for that period.

Overall the new Fit Notes should benefit both the employee and the employer. The employer will be provided with more information about the employee’s health condition and the measures it could put in place to facilitate an earlier return to work. An earlier return to work can result in savings from a reduction in sick pay to other costs incurred by sickness absence such as lost turnover, loss of skills base, re-training costs and poor staff morale. The employee is provided with the support they need to return to work and the new system will hopefully remove the challenges that an employee faces when trying to return to work after an illness or injury.

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Ignore employment law at your cost!

November 18th, 2009

UK businesses have been advised that not taking care to follow employment law could leave them forced to pay out as much as £70,000 at an employment tribunal.

Speaking at the Elite Travel Group conference in Bournemouth, Broomhall and Co senior partner Steve Broomhall said this is the amount that employers can expect to pay out if they lose when taken to an employment tribunal by a former employee.

According to Travel Weekly, Mr Broomhall highlighted the importance of managers and HR staff ensuring that they take steps to avoid potential court action being taken, particularly as settlement costs are on the rise.

“When we’re doing business for clients, one of the biggest areas for us is employment issues as it is these that can catch you out. It is not difficult to get your procedures right; it is mundane, it is boring, but it is easy,” he explained.

Mr Broomhall advised that the workforce be given contracts which detail all of the terms and conditions of their employment clearly and that redundancies should also be made fairly.

A landmark employment tribunal recently ruled in favour of a worker who claimed he was made redundant as a result of his green beliefs.

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Monday is a ’sick day’

November 12th, 2009

More than a third of all workplace absenteeism in the UK occurs on a Monday, new research has revealed - which could present HR or business managers with an absence management dilemma.
The study by Mercer has revealed that Monday is the one most likely to see people phoning in sick.
Further findings of the research revealed that women take 24 per cent more sick leave than their male counterparts, while females are also twice as likely to take time away from the office due to stress, depression, anxiety of exhaustion, the Times reports.
Employers may therefore wish to tackle stress in the workplace, with the National Institute for Health and Clinical Excellence stating that it could save workplaces around £250,000 a year.
Meanwhile, around a quarter of all sick days arise from people needing time off for musculo-skeletal problems.
HR7 can provide advice to businesses about developing effective absence management plans – especially ahead of the festive season. The Mercer report also says that January is typically the month which sees the highest levels of sickness absence.

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National Minimum Wage and Statutory Redundancy Payment Update

October 1st, 2009

An employer must pay their workers a minimum amount as defined by law. This is called the National Minimum wage. The National Minimum wage rates increase on the 1 October 2009.

The Government has announced that it is outlawing the use of tips to make pay up to the national minimum wage. Currently, where tips, service charges or gratuities are paid through the payroll they can be used to help the employer meet its obligations to pay the national minimum wage. From 1 October 2009 this will no longer be permitted.

From the 1 October 2009 there will also be a one-off increase in a week’s pay for the purposes of calculating the amount of a statutory redundancy payment, from £350 to £380. This will result in a maximum potential statutory redundancy payment of £11,400.

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Baroness Scotland fined for employing illegal worker

September 24th, 2009

Attorney General Baroness Scotland has been fined £5,000 after being found to have employed an illegal worker as a housekeeper.

The UK Border Agency said she took steps to check Tongan Loloahi Tapui’s right to work but had not kept a copy of documents, as required by law. Baroness Scotland had helped write the legislation on employing illegal workers.

In a statement she said she fully accepted that she had made a “technical breach of the rules” and apologised for “this inadvertent error”.

She told BBC News: “I have been given an administrative penalty. This is not a case of a criminal act, this is the case of failing to photocopy a document which I absolutely accept was wrong and I have apologised for that wholeheartedly.

“This was a woman who was working locally, she was married to a solicitor. I believed the documents that I saw on their face value.

She added: “I did believe the woman that I employed was honest, and honourable and entitled to be here. That was a flaw and I have therefore absolutely accepted that for this technical breach, administrative breach I should be penalised.”

Downing street to not take further actions, stating:

“The UK Border Agency is satisfied she did not knowingly employ an illegal worker. She examined documents of her status. She paid tax and National Insurance on her earnings. She employed her new cleaner in good faith.
“But regrettably she did not retain copies of the documents proving the right to work she was given. As a result she is paying an administrative penalty.”

The fine given to the government’s chief legal adviser for illegally employing a housekeeper should prompt HR departments to ensure they are making the right recruitment checks, experts have warne

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Good HR ‘can ensure staff wellbeing’

August 19th, 2009

Having positive HR policies, the possibility of further training and good communication within a workplace can ensure the wellbeing of employees, new research has discovered.

The report by the Institute for Employment Studies revealed that in spite of the recession, staff wellbeing is well worth the investment.

In a survey carried out by the group, over half of respondents stated that wellbeing was more important to their business during the current economic climate.

Top priorities in this area were found to be increasing or improving line manager training, better absence management, improved communication with staff about health and wellbeing and more facilities for dealing with stress and mental health issues.

Commenting on the survey’s findings, Claire Tyers, associate director leading the Work, Health and Well-being research team at the Institute for Employment Studies, said: “Employers appear to have accepted that improving wellbeing has positive implications for staff efficiency and, ultimately, the profitability of their business.”

The news comes after the Daily Mail reported figures revealed under the Freedom of Information Act show that last year, police officers took 225,000 days off work because of stress, an issue which may be solved with improved staff wellbeing.

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