Where are employers going wrong when managing annual leave?

In light of the recent controversy that has surrounded Ryanair in regard to management of annual leave, Personnel Today have published 5 common employer pitfalls. At Employment Law Services (ELS) we have summarised these to help our existing and non-existing clients avoid being caught out.

(1)  Not encouraging employees to spread annual leave out over the working year

It can become problematic for employers who allow their staff to build up too much annual leave.

This could arise in the event of excess work to complete or a business finds they are struggling due to the economic climate. Because of this, employees may be hesitant to take annual leave as they believe they are not in a position to do so at certain times of the year without putting their job at risk.

It is suggested that employers encourage their employees to plan and take time off, by doing this it helps to preserve employee health, wellbeing and motivation. Further, this helps prevent the workforce from sitting on excessive amounts of leave to take at the end of the year.

(2)  Offering an employee a cash substitute for their holidays

Often an employer may be tempted to offer their employee with a cash alternative in return for them giving up their annual leave entitlement. This has been seen when organisations are having a staffing crisis, have a heavy work load or require a big project to be completed on time.

It is important that employers remember the key principle of annual leave legislation – employers cannot offer employees payment in lieu of their statutory minimum annual leave entitlement.

(3)  Allowing employees to carry over excessive amounts of annual leave

European law restricts employers from carrying over the first 4 weeks of an employee’s statutory annual leave, except in the situation where an employee has not been able to take their holiday entitlement due to sickness. If they are not taken, they are lost.

After the first four weeks of statutory annual leave, employers have more scope to allow employees to carry forward any holidays left at the end of the year.

It is important that employers/managers confirm this through the employee’s contract of employment when clarifying whether this will be allowed or not and what rules have already been set.

(4)  Authorising too many employees holiday requests at the one time

This is generally seen during summer time and Christmas time. Managers are often discouraged to turn down an employee’s holiday request if they have already planned the trip.

However, it is important that employers/managers remember they are not legally obliged to accept these requests, unless the contract of employment states otherwise.

At Employment Law Services (ELS), we equip our clients with clear policies on holiday requests and encourage employers/managers to decline requests if the timing would result in the business struggling.

(5)  Not paying the employee the correct rates during annual leave

Recently, according to Personnel Today, “the single biggest employment law headache for UK employers has been revolved around the calculation of holiday pay.”

It is important to note, that it is no longer admissible to calculate holiday rates on the basis of an individual’s basic rate only.

Employers now need to consider over time, commission, stand by and travel allowances.

How can Employment Law Services (ELS) help?

Ensure your HR policies are updated to comply fully with current UK employment law. This is critical in protecting your business from employment Tribunal claims because they provide the framework to help employers to treat their staff fairly and consistently within the parameter of current UK employment law.

Formalising arrangements in certain areas of people management and development not only makes good business sense, it also ensure everyone is treated fairly and consistently which will help protect your business by significantly reducing the risks and costs associated with disgruntled staff filing Industrial Tribunal claims.

If you require employment law advice on any of the issues raised in this article, or any other employment issue give us a call today on 0370 218 5662.  You can also find out more about our fixed fee HR packages here and fixed fee employment law packages here, or get in touch.

What to do if your employee resigns and doesnt work notice

What action can you take when an employee resigns but does not work their required notice period?

In the first instance, employees are generally under a contractual duty to give their employer a minimum notice of resignation. This duty is waived if the employer has fundamentally breached the contract of employment or has agreed to remove the notice period.

Of course, if the employee does not show up to work during their notice period the employer does not have to pay them. However, the business may then be at a loss in the event that the employer then has additional costs to pay should he bring in an agency worker to cover the role.

At Employment Law Services (ELS) we believe prevention is key!

Preventing the situation from occurring in the first place is always better than the cure. It is recommended that employers insert contractual rights which will discourage the employee from not working their notice period whilst providing the employer with an effective remedy if they do.

An example of this is a contractual clause that permits the company to deduct from the employee’s final wage. This is usually an amount equal to what the employee would have earned throughout the period of notice they failed to work. E.G. If they did not work one week then the employer could deduct one week’s pay off their final wage.

Breach of contract

It is crucial that employers insert these provisions into the contract of employment prior to the employee handing in their notice.

Should you fail to do this, then deduct from the employee’s final wage anyway, this action will amount to an unlawful deduction of wages. For which the employee can then raise a claim in the Employment Tribunal, this will then further prevent you from recovering any losses occurred using another legal remedy.

It can become time consuming and costly when attempting to prove damages to the business and will essentially depend on the nature of the organisation and the role of the employee. Because of this, employers often fail to pursue further action.

Thus, it is extremely important that your contracts of employment are kept up to date in order to protect yourself and the business from unnecessary damages.

How can Employment Law Services (ELS) help protect your business?

For Employers that already have contracts of employment in place, we can review all existing documents and update them as required and for Employers that have nothing in place, we can produce effective contracts of employment for all staff members from scratch.

Whatever your requirements are, Employment Law Services (ELS) can help! Either as a ‘one-off’ exercise or as part of one of our HR Service packages, EmployEasily will ensure your statutory obligations are met and that your business prevents problems and remains protected.

At Employment Law Services (ELS), our team understand that the needs of employers differ depending on the nature of the role that they are looking to fill. We also appreciate that some employers may already have some form of contract with employees, but may be concerned that the contract does not accurately reflect the nature of the relationship or is riddled with ambiguities. It is these issues which often cause difficulties to employers in attempting to deal with employees when difficulties can and do arise. We take pride in offering a service that aims to address these concerns of employers.

Employment Law Support for Employers

If you require employment law advice on any of the issues raised in this article, or any other employment issue give us a call today on 0370 218 5662.  You can also find out more about our fixed fee HR packages here and fixed fee employment law packages here, or get in touch.

Employment Tribunal Statistics remain stable…but for how long?

Recent statistics produced by the Ministry of Justice showed that the number of claims to the Employment Tribunal between the period April to June 2017 has increased.

From April to June there were 4,241 single claims logged, this shows a 2% increase on the same period of 2016.

88,476 cases were accepted by the tribunal service over the year to June 2017. 17,005 of these counted for single cases and 71,471 counted as multiple claims. This shows an increase in the total claim numbers by 6% in comparison to 2015/16.

Although the number of claims logged has been suggested as being stable, this is likely to change after the Supreme Court found that tribunal fees were unlawful. This is because employees will now feel more inclined to bring a claim forward with the removal of the barrier of costly fees.

Between April and June, there was 9,518 multiple claims received. This shows a decrease of 19% during the same period in 2016.

The research published by the Ministry of Justice identified that the maximum compensation award during 2016/17 was in an unfair dismissal claim which saw £1.7m paid out.

Throughout the year to June 2017, over 30,000 cases were brought under the Working Time Directive, 12,038 for unfair dismissal and 10,467 for equal pay.

In the same time frame 86% of claimants had legal representation and 9% represented themselves.

Cases heard in the Employment Appeal Tribunal in 2016/17 fell by 8% in comparison to the year 2015/16. The number of claims thrown out by the EAT decreased by 14% over the same time period.

Following the ruling made by the Supreme Court, the Government announced it would take steps to put an end to fees and organise refunds to all who have previously paid fees – this pay-out has been estimated to cost the Government £32m.

Xpert HR’s employment law editor, Stephen Simpson states: “It is anticipated that the abolition of employment tribunal fees in July of this year will lead to a sharp rise in claims. What we don’t know is whether the removal of the fees barrier will mean an immediate return to pre-July 2013 claim levels. Or will the increase be more modest or gradual?

“The latest statistics only cover the period up to June 2017, so don’t shed any light on this. However, employers and employment lawyers will be eagerly awaiting the next round of quarterly tribunal figures, covering July to September 2017. They are scheduled for publication on 14 December and should provide an indication of the initial impact of the removal of fees on claim levels.”

How can we help?

If you’re facing an Employment Tribunal Claim and want to find out more about how Employment Law Services (ELS) can help support your company, contact us today on 0800 612 4772 or request a Free Quote now.

Public sector pay cap to be lifted from next year

Theresa May’s Government announced yesterday they will end the 1% annual cap on public sector pay by 2018 and in 2017, police and prison staff will be awarded with a 2% and 1.7% rise.

However, Senior Police Officers remain locked in a bitter row with the Government arguing that the number of officers on the streets will have to be cut in order to fund this 2% pay rise for their staff.

The Prime Minister stated that “more flexibility” is required to continue attracting and retaining workers with the right skills in order to distribute “world class” public services.

These rises will be supported through cuts elsewhere in prisons and police force budgets. It has been submitted that other public-sector workers will see a rise in 2018/19 however, these will be funded through Government spending.

The armed forces, doctors, dentists and the NHS are next scheduled for a pay review which will be addressed in Autumns budget.

These increases appear as a positive move in the right direction, however, they still fall below the rate of inflation and were instantly criticised by unions who have been fighting for a 5% increase across the board.

The Prison Officers Association argues that the 1.7% pay increase for their staff is “not good enough” when current inflation sits at 2.9%.

The Police Federation stated: “It nowhere near makes up for what police officers have lost – it doesn’t deal with real term cuts.”

Frances O’Grady, General Secretary of the Trade Union Congress branded the Government as “pathetic” over the offer. “Public sector workers have suffered seven long years of real pay cuts and are thousands of pounds worse off. Today’s announcement means bills will continue to rise faster than their wages.”

Sir Vincent Cable, leader of the Liberal Democrats said he was pleased the Prime Minister had accepted that the pay cap was no longer sustainable and urged ministers to protect all public-sector workers and ensure they are “given the pay they deserve.”

How Employment Law Services (ELS) Can Help Employers

Employers concerned about any of the issues raised in this article can take advantage of Employment Law Services (ELS) free consultation service – call us today to arrange your free consultation – 0800 612 4772.

Employer queries regarding data subject access requests

What are data subject access requests?

The Data Protection 1998 provides that employees can act as ‘data subjects’ which allows them to make data subject requests in regard to information that may be held about them.

These requests are straightforward to make; however, they can become time consuming and complex for the employer.

The sole purpose of data subject access requests is to allow the individual to certify that their information is being processed duly and in line with the Data Protection Act.

However, many employees have been suggested as using these requests as a way of ‘fishing’ before legal action.

What is classed as personal data?

Under the Data Protection Act, personal data is defined as “data relating to a living individual who is or can be identified either from the data or from the data in conjunction with their information that is in, or is likely to come into, the possession of the data controller.”

In simpler terms, it is information that concerns the individual in his/her personal, family, professional or business life.

What forms a binding data subject access request?

In the first instance, a valid request should be in writing. Those who hold the data can request that a fee of up to £10 is paid in the first event before the data will be released.

It is important that employers are satisfied with the identity of the person requesting the data. It should not be automatically assumed that the individual requesting the data is who they say they are.

When asking for proof of identity, this must be reasonable. Reasonable requests include requesting that the subject shows you their passport or drivers licence.

In addition, some requests may come through third parties such as the employees doctor or solicitor. As the person who holds the information you must be satisfied that the request has been sanctioned by the subject. In this instance, you may ask that the employee provides you with authority in writing before you release the request.

What data can an employee request?

The ICO code of practice states that an individual is entitled to be:

– Told whether any personal data is being processed;

– Given a description of the personal data, the reasons it is being processed and whether it will be given to any other organisations or people;

– Given a copy of the personal data and;

– Given details of the source of the data (where this is available)

The ICO code of practice states further “an individual can also request information about the reasoning behind any automated decisions taken about him or her, such as a computer-generated decision to grant or deny credit, or an assessment of performance at work.”

What is the time limit when responding to a request?

The ICO Code of Practice states employers must respond to access requests promptly and within 40 days of receiving the request.

How can we help?

At Employment Law Services (ELS), we will work together with our clients to ensure they are fully protected and prepared for the new regulation to take effect in May 2018. If you have any specific queries about the impact this may have on your business or wish to contact us for a free consultation call us today on – 0800 612 4772.