2017 | Page 3 of 5 | Employment Law Services (ELS) LTD

What to do if your employee resigns and doesnt work notice

Posted on 21 September 201712 June 2023 by @deliver_els

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?

Posted on 19 September 20178 June 2023 by @deliver_els

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

Posted on 13 September 201712 June 2023 by @deliver_els

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

Posted on 7 September 20178 June 2023 by @deliver_els

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.

Absence and Attendance Management in the Workplace

Posted on 23 August 20177 June 2023 by @deliver_els

“My employee is absent without my permission and has taken company property. How can I get this back?”

The first step that would be recommended before taking legal action would be to write to the employee requesting that the return the property that belongs to you.

It is important to note that Civil Court proceeding are often costly and can damage a company’s reputation. Thus, the matter should be resolved through conciliatory routes in the first instance.

“I cannot get a hold of my employee who is on long-term sick leave. What can I do?”

It is crucial that employers do not put pressure on the employee to return to work, this can make the situation worse. However, you can still maintain appropriate contact with this employee during their long-term sick leave.

When determining whether this is a conduct issue, employers should check the wording of their contract of employment/workplace policy. If the employee has not followed the provisions set out in these, it may then be classified as an unauthorised absence which will generally result in the employee being unpaid for this time. The employer should then inform the employee that the company will be considering disciplinary action, this should be done in writing.

If you must contact an absent employee, you should follow best practice by ensuring the letter is sent recorded delivery, this will allow you to track it and identify who it was signed by on delivery. If the letter is sent back to you, as the employer you should make reasonable attempts to find out if the employee has changed address and not informed you. It is crucial that you do not assume the employee has resigned due to lack of contact.

“My employee went on holiday and has not returned to work. What action can I take?”

In the first event, employers would be expected to make a reasonable attempt at contacting the employee. This ensures that fair procedure is being followed whilst allowing the employee a chance to explain. Further, it is recommended that employers try contact through all avenues such as next of kin and colleagues.

In addition, employers should set a date in which they expect the employee to contact the workplace by – this should be put in writing.

Following a reasonable investigation and there is still no explanation for their absence, the employer may then inform the employee that dismissal for gross-misconduct will be considered. It is important that employers seek legal advice in this situation to ensure risks of claims to the Employment Tribunal are eliminated.

Can I withdraw an offer if the candidate has not responded?

If your offer has not been accepted, you can formally retract it at any point in writing. This is because there is no contract formed at this point. Employers should follow best practice in this event, your offer letter should inform the candidate that the offer is due to lapse if it has not been accepted by a specific date.

Employment Law Support for Employers

Unlawful Interview Questions

Posted on 22 August 201712 June 2023 by @deliver_els

Acceptable and unacceptable interview questions

The purpose of holding job interviews is to obtain as much information as you can on your potential new employee. It therefore does not come as a surprise that on occasions employers are crossing that legal line on what they can and cannot ask.

There are appropriate interview queries and inappropriate queries, it is important that employers are aware of legislation that surrounds these.

(1) “What is your colour/ethnicity/race?”

This question is illegal, the ability to do the role cannot be measured on an individual’s colour/ethnicity/race. Exceptions may be made in the event that a modelling agency requires someone specific for the role.

(2) “What age are you?”

An employer may ask if the candidate is over the age of 18, this is to assure they are legally old enough to carry out the duties of the role. For example, bar and restaurant work. Age discrimination is one of the most recent discrimination rules under the Equality Act 2010 and provides that age is not a clear basis when assuming an individual’s ability and maturity to carry out a job.

(3) “Are you pregnant?”

No, no, no! Employers and prospective employers must not ask the employee/potential employee this question.

Asking or basing a hiring decision on pregnancy would result in a violation of the Equality Act 2010 and could result in legal liability against the employer. Asking the candidate what their long-term career plans/goals are should be suffice when measuring the individual’s commitment to the company.

(4) “Do you have any disabilities/are you disabled?”

The general position of the Equality Act 2010 is that it is unlawful for an employer to ask any potential employee about their health or disability. Instead, an employer may ask the candidate if they can carry out the specific duties required in the job description.

If the employer offers the individual the job he/she may then may ask the employee health questions. This is to allow them to make reasonable adjustments to the workplace so that they are not put at a disadvantage to other employees.

(5) “What are your religious beliefs?”

Employers have been seen to ask this question to determine applicants work schedules. For example, if the employee will be available to work on a Sunday. Unless there is a need for a candidate to have a specific belief, religious questions should not be mentioned at all.

In addition, there is no reason that candidates should mention their religious beliefs on their CV/application form.

(6) “Do you drink/smoke?”

Even if the organisation has a strict no-smoking policy, employers cannot ask this question as part of the interview process. Asking a candidate this question crosses the line between the workplace and the applicant’s personal life.

Further, this question can suggest discrimination – asking a candidate whether they drink or smoke would imply that this is a determining factor in the hiring process. Should you directly ask this question, you are opening yourself up to discrimination claims if the candidate does not get the position they were interviewed for.

The reason behind this is, drinking alcohol and smoking cigarettes in the UK is legal and something that an employee would do outside of work. Instead, employers may ask if the employee has previously been disciplined for breaching company alcohol and smoking policies.

(7) “Do you have any children?”

Interviewers should not ask this question. It is understood that family obligations may interfere with the role, however, it is important that employers do not make assumptions into such situations.

Instead, the interviewer may ask the candidate if they would be willing to work overtime if the opportunity were to arise.

(8) “What is your marital status?”

Again, this question is irrelevant and links back to number 7. It is illegal for an interviewer to make their hiring decision based on marital status. However, they can ask a candidate’s career plans and assess it from there.

(9) “Do you have any debt?”

An employer should not ask a potential employee about their financial status or credit rating during an interview, credit history should not measure an individual’s performance in a job.

Some exceptions are made to this question in the event that the role involves a financial or banking position. The employer may then request a credit check granted he receives the employee/potential employee’s permission.

What should employers consider?

Certain interview questions are clearly discriminatory and avoided by almost all employers with the correct legal advice.

However, when trying to get a good picture of the candidate during the interview, straying into ‘grey areas’ can be easily done. What you think is a simple and harmless conversation, may in fact be discriminatory which in turn exposes you to costly litigation claims.

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

Named and shamed: Argos fail to pay NMW

Posted on 18 August 20179 June 2023 by @deliver_els

The latest list of employers who have failed to meet National Minimum Wage legislation has been published by HMRC.

Argos which is made up of 233 employers has topped the “name and shame” list. The retailer which is owned by Sainsburys, have been hit with a fine of £800,000 after admitting a mistake they made early 2017 which resulted in 37,000 staff members being underpaid.

This came after the company required their employees to attend briefings before their shift started, these were unpaid. As well as, a security search at the end of shift which also went unpaid.

The Chief Executive of Argos, John Rogers stated: “Processes have been updated to ensure this cannot happen again”.

Other errors include, deducting money from wages to pay for staff uniforms, failure to account for overtime and wrongly paying apprentices.

The Department for Business, Energy and Industrial Strategy displayed that common offenders were retailers, hairdressers and the hospitality industry.

Current rates

As of April 2017, the rate for 25 and over is £7.50, 21-25: £7.05, 18-20: £5.60, under 18: £4.05 and apprentice: £3.50.

Frances O’Grady, General Secretary of the TUC stated: “We know there are more wage-dodging employers out there. TUC research suggests there are at least a quarter of a million workers being cheated out of the minimum wage.”

The director of HMRC, Mellissa Tatton said the “HMRC is committed to getting money back into the pockets of underpaid workers, and continues to crack down on employers who ignore the law. Those not paying workers the national minimum or living wage can expect to face the consequences.”

How Employment Law Services (ELS) Can Help Employers

Pimlico Plumber case goes to the Supreme Court!

Posted on 15 August 201712 June 2023 by @deliver_els

Last Tuesday, Pimlico Plumbers were granted permission to appeal their long and potentially revolutionary case to the Supreme Court.

The case of Pimlico Plumbers is the latest in a series of employment decisions that address the issue – when is a self-employed individual actually viewed as a worker/employee, which in turn grants them all the employment rights that come with worker status?

In February 2017, the case of Pimlico Plumbers Ltd and another v Smith saw the Court of Appeal rule that a plumber was in fact a worker under statutory provisions, entitling him to workers’ rights.

Mr Smith had the obligation under an employment contract to wear a Pimlico uniform, drive a van that was leased and fitted with a GPS tracker by Pimlico and work a minimum number of hours each week.

Despite this, Mr Smith was allowed to pick the jobs that he worked on, had to provide his own work tools and equipment and paid all his own tax and national insurance.

The claimant brought his complaint in front of the Employment Tribunal on the grounds that he was a “worker”.

When the case was heard in the Court of Appeal, the judge recognized that Mr Smith was a worker, which in turn should have entitled him to employment rights, such as, the right to national minimum wage and paid annual leave.

Last week, Mishcon de Reya, who is the law firm representing Pimlico Plumbers reported that they had been granted permission to take the case to the Supreme Court.

The decision that has yet to be heard in this case will be the highest case authority in employment in the UK for “gig-economy” workers.

Mischon de Reya stated: “In arriving at a judgment in this case, the Supreme Court will have to wrestle with important but difficult public policy questions about the type of worker that UK employment law is supposed to protect, and the impact such protections have on UK businesses.

“The law on employment status has been somewhat confused for some time now. Working arrangements are increasingly breaking free of the traditional employer-employee relationship, largely as a result of advances in technology.

“When faced with such atypical working arrangements, the courts and tribunals have increasingly resorted to finding ‘worker’ status.

“It is hoped that the Supreme Court will offer clear guidance and go some way to clarifying the law in this area.”

In response to the news, Charlie Mullins who is the Managing Director of Pimlico Plumbers said: “Today I received the most wonderful news that my company, Pimlico Plumbers, has been granted permission to appeal our long-running and potentially ground-breaking employment case to the Supreme Court.”

“The Supreme Court’s remit is to “hear appeals on arguable points of law of the greatest public importance“, and I am in no doubt that Pimlico’s case falls squarely into this category. Its ramifications will impact upon many thousands of companies in the building industry and beyond, and potentially affect the lives of hundreds of thousands, if not millions, of UK workers. I am needless to say incredibly grateful that the Supreme Court has agreed to look again at this case.”

“Let me be crystal clear, I completely condemn disreputable companies who are using fake self-employment to swindle workers out of pay and conditions, however, at Pimlico Plumbers we are not doing that. So, it is my determined aim to convince the Supreme Court that by using self-employed status Pimlico Plumbers are doing nothing wrong, and what’s more are both morally and legally in the right.”

At present, there has been no date set for the trial. However, at Employment Law Services (ELS) we will keep you informed of updates as they come in.

How Employment Law Services (ELS) Can Help Employers

Google in trouble after over 60 female employees claim they have been discriminated against!

Posted on 11 August 20178 June 2023 by @deliver_els

Google face major law suit after more than 60 employees claim they have been discriminated against.

The Guardian reported yesterday that over 60 current and past employees of Google are contemplating bringing a class-action law suit against google on the grounds of sexism and pay disparities against women.

James Finberg, who is a civil rights attorney, has hinted he may be representing the female employees of google. He reported to the Guardian “they contend they have earned less than men at Google despite equal qualifications and comparable positions.”

He claims that many others have had difficulties attempting to move up the ladder at Google due to a “culture that is hostile to women”.

This comes after a male software engineer leaked a 10-page manifesto naming and shaming the company’s diversity initiatives and suggested that male employees may occupy more leadership roles than female employee’s due to “biological differences”.

Finberg reported to the Guardian that he had interviewed more than half of the 60 women and their testimony’s all determined evidence of disparity and prejudice against women of the Mountain View company.

He said: “They are concerned that women are channeled to levels and positions that pay less than men with similar education and experience”. Despite them working in similar roles with the same qualifications, some women claimed, “they made less than male counterparts in salaries, bonuses and stock options.”

A spokesperson for Google told the Guardian, “there are always going to be differences in salary based on location, role and performance, but the process is blind to gender”.

Finberg further declared to the Guardian, a class-action case could result in other employee’s in the technology industry coming forward with similar complaints.

“Google is not alone in Silicon Valley. The goal of the case is not only to get Google to change its practices, but to encourage other Silicon Valley companies to change their pay practices as well.” He said.

What is gender pay- gap reporting?

As per ACAS guidelines, gender pay reporting is “legislation that requires employers with 250 or more employees to publish statutory calculations every year showing how large the pay gap is between their male and female employees”.

It is important to note, gender pay gap reporting is different to equal pay. Equal pay is concerned with the pay differences between male and female employees in the workplace, who carry out the same or similar role. It is deemed as unlawful should you fail to pay someone equally on the basis of gender.

How Employment Law Services (ELS) Can Help Employers

Data Protection Bill set to launch in September

Posted on 9 August 20177 June 2023 by @deliver_els

On the 7^th of August, the Government outlined its objective for the new Data Protection Bill, it is due to be published next month and will merge the EU’s General Data Protection Regulation (GDPR) into legislation in the UK.

This legislation will now grant individuals the right to be forgotten and ask for any personal data held by others to be erased.

Organisations will have support through this process to make sure they are complying and managing data in line with regulations.

Should an organisation fail to meet requirements, the Information Commissioner will now have additional powers to defend consumer rights, meaning they can now issue fines of up to 17m or 4% of global turnover (whatever figure is higher) in the event that Data Protection Regulations are breached.

Minister of the Department for Digital, Culture, Media and Sport, Matt Hancock stated:

“Our measures are designed to support businesses in their use of data, and give consumers the confidence that their data is protected and those who misuse it will be held to account.

“The new Data Protection Bill will give us one of the most robust, yet dynamic, set of data laws in the world. The Bill will give people more control over their data, require more consent for its use, and prepare Britain for Brexit. We have some of the best data science in the world and this new law will help it to thrive.”

“The Data Protection Bill will allow the UK to continue to set the gold standard on data protection. We already have the largest internet economy in the G20. This Bill will help maintain that position by giving consumers confidence that Britain’s data rules are fit for the digital age in which we live.”

The Department for Digital, Culture, Media and Sport said further that the Bill would:

– Make it simpler to withdraw consent for the use of personal data;

– Allow people to ask for their personal data held by companies to be erased;

– Enable parents and guardians to give consent for their child’s data to be used;

– Require ‘explicit’ consent to be necessary for processing sensitive personal data;

– Expand the definition of ‘personal data’ to include IP addresses, internet cookies and DNA;

– Strengthen the law to reflect the changing nature and scope of the digital economy;

– Make it easier and free for individuals to require an organisation to disclose the personal data it holds on them;

– Make it easier for customers to move data between service providers.

The Government have said it will be a criminal offence if an individual “intentionally or recklessly re-identifies an individual from anonymised or pseudonymised data.”

In addition, those in association with this who handle or process the data knowingly, will also be committing a criminal offence.

A further offence will be conceived should an individual alter records with the intent of stopping them being identified when someone exercises their right to the data.

How can employers prepare for the reforms?

– Start to consider how to efficiently recruit and train a Data Protection Officer;

– Have in place a clear data policy that defines procedures, in particular data breaches;

– Review employment contracts that regard consent;

– Have in place clear privacy notices that are straightforward so that it is easily translated to your employees;

– Ensure there is a legitimate basis for the retention of data stored and for the transfer of any data. E.G. in relation to HR.

How can we help?