Year: 2018

Top 5 Employment Law Questions of August 2018

Posted on by @deliver_els

1. When is it permissible for an employer to terminate the contract of employment of an employee on the grounds of ill health?

Dismissing an employee on the grounds of ill health is anything but straight forward. Lack of capability, including when assessed with reference to health can be viewed as a potentially fair reason for dismissal under s98 of the Employment Rights Act 1996.

Assuming the employer can provide enough evidence that capability is the reason behind the dismissal, it must then be followed with a fair procedure.

Over the years, case law has established 4 main elements that constitute a fair procedure, these include:

• Consultation with the employee
• A medical investigation
• Consideration of alternative employment
• Possible ill health early retirement if there is provision for this

2. What records relating to statutory maternity pay must an employer keep?

An employer must keep the following information on each employee who receives statutory maternity pay:

• The medical certificate (MAT B1) or other evidence relating to the pregnancy that has been provided by the employee
• A record of intended dates of leave advised by the employee and the date the maternity leave officially commenced, if circumstances change
• A record of weeks that SMP was paid and the amount paid each week
• A note of any weeks in the maternity pay period for which SMP was not paid and the reasons why

3. If an employee wishes to resign after disciplinary proceedings have commenced, should the employer continue the disciplinary proceedings?

If the employee’s resignation is with immediate effect, then his or her employment will terminate. There would then be nothing to gain in continuing disciplinary proceedings without the employee who is no longer employed. However, it is important that employers store the disciplinary information for up to one year following the employee’s resignation. This information will be of great use should the employee attempt to claim constructive dismissal or unlawful discrimination following the disciplinary proceedings.

4. What will happen to EU employees after Brexit?

The rules on free movement and immigration in the UK still remain unclear. This topic has been a fundamental issue of the negotiations held between the UK and the EU.

On 8 December 2017, the UK Government announced it had come to an agreement with the EU on citizens’ rights. Following this, a further agreement was reached on the terms of the implementation period. The agreement named “Settled and pre-settled status for EU Citizens and their families” is not yet law and will be subject to change depending on the final outcome of the negotiations.

The Government have implied that there will be an implementation period, which is due to commence on 29 March 2019 (the withdrawal date) and will terminate on 31 December 2020. Under this agreement, EU nationals residing in the UK before 31 2020 will meet the criteria for settled status when they have been a UK resident for 5 years. This will give them the right to work and live in the UK without a fixed time limit.

EU nationals who do not have 5 years continuous residency will be permitted to apply for a permit, which will grant them the right to remain until they reach the 5-year mark, at this point they will be able to apply for settled status.

Those who arrive in the UK throughout the implementation period will be required to register their residency if they stay for longer than 3 months.

5. Can employers still operate childcare voucher schemes following the introduction of tax-free childcare?

Yes, employers can still operate a childcare voucher scheme. However, it is important to note that new entrants will not be eligible to join the scheme from 4 October 2018.

The Government had initially announced that the scheme would end 5 April 2018. However, it was extended by 6 months in March 2018. Employees will continue to reap benefits from an existing childcare voucher scheme, as long as they continue as employees of the employer and that employer continues to offer the scheme.

How can Employment Law Services (ELS) help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

Discrimination because of religion or belief

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All employers should already be aware that treating an employee differently because they are Muslim, Jewish, Christian, black, white etc can result in legal action. But, can you be accused of discriminating against another person’s philosophical belief’s?

“Religious or philosophical belief” is one of the 9 protected characteristics under the Equality Act 2010. And unlike the rest, it can be a difficult one to define. As a result of this, the Employment Tribunal has heard many interesting complaints over the years from disgruntled employees arguing that their beliefs should be protected.

Cases from the past have established that various belief systems may be afforded protection under legislation. This came after the Tribunal held that beliefs in climate change, Rastafarianism and anti-hunting should be protected. Since then, it has been extended further to protect beliefs in higher purposes of public-service broadcasting as well as mediums and their ability to contact the dead.

Yet, there have also been some memorable failures in the system when establishing that a belief meets the foundations for discrimination protection.

For example, a belief that the terrorist attacks of 9/11 and 7/7 were authorised by the British and American Governments and that there was a worldwide media conspiracy, failed on the grounds that upon objective scrutiny, such beliefs were “absurd” and not cogent.

As well as this, a belief that people should wear a remembrance poppy from 2nd November until remembrance Sunday, was not enough to be considered as weighty and substantial to qualify.

Furthermore, the objection made to same-sex couples adopting children was held as a mere opinion and not a philosophical belief.

This blog should help guide employers through this legal minefield.

Discrimination defined

Direct Discrimination

Direct discrimination occurs when a person is treated less favourably than another person because of a protected characteristic they have or are thought to have.

Discrimination by association

This is applied to age, race, religion or belief, sexual orientation, disability, gender reassignment and sex.

Perception discrimination

Applies to age, race, religion or belief, sexual orientation, disability, gender reassignment, and sex. This is direct discrimination against an individual because others think they possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic.

Indirect discrimination

Applies to age, race, religion or belief, sex, sexual orientation, marriage and civil partnership, disability and gender reassignment. Indirect discrimination can occur when you have a condition, rule, policy or even a practice in your company that applies to everyone but particularly disadvantages people who share a protected characteristic. Indirect discrimination can be justified if you can show that you acted reasonably in managing your business, i.e. that it is “a proportionate means of achieving a legitimate aim”

What amounts to a philosophical belief under the Equality Act 2010?

In the case of Grainger PLC v Nicholson, the Employment Tribunal set out 5 aspects on how to recognise a philosophical belief and concluded that the belief should be:

• Genuinely held;
• A belief and not just an opinion;
• A belief as to a weighty and substantial aspect of human life and behaviour;
• Sufficiently cogent, serious, cohesive and important;
• A belief that is worth of respect in a democratic society and compatible with human dignity and the fundamental rights of others.

Employer considerations

Most employers will already know that they have a duty to prevent discrimination in the workplace. Failure to do so can be costly and result in increased employee turnover and absenteeism, lower employee morale and productivity and high insurance costs.

Employers should take action to prevent discrimination from occurring in the first place. To achieve this, we advise you take the following steps:

(1) Familiarise yourself with all anti-discrimination laws;
(2) Develop and roll out a diverse anti-discrimination policy;
(3) Ensure all staff are sufficiently trained on anti-discrimination;
(4) Be ready to investigate complaints of discrimination or harassment;
(5) Examine all business decisions for unintentional discrimination.

How can Employment Law Services (ELS) help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

Employee Onboarding – 5 Best Practices to Improve Retention

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What is an onboarding process?

Onboarding is the procedure an employer should use to help a new employee acquire the knowledge and skills needed to become a successful member of the team. Onboarding should cover the following steps:

• Preparations prior to the start date;
• An introduction to tools used;
• Orientation of the office culture;
• A chance to meet the rest of the team;
• An evaluation of the full process afterwards.

Why is employee onboarding important?

SME business owners should view onboarding as an opportunity to ensure all new starts hit the ground running and grow to become loyal satisfied members of the team.

After all, you put a lot of management time and effort into finding the perfect candidate for the job. So, you should not stop there, employers should then put as much effort into ensuring that their new employee succeeds in their new position.

Communicate often and before the employment begins

Once you have selected the right candidate for the job, and before the employment commences, there are a few steps you can take to ensure the onboarding process runs smoothly and successful:

(1) Get the employees personal information; for example, the candidates name, title, national insurance number, proof of right to work in the UK etc;
(2) Notify all relevant departments; inform your HR support, payroll, IT and anyone else that may need the new employee’s personal details. Ensure that you follow up with all relevant departments and confirm they are prepared ahead of time for the new arrival.

It is advised that employers begin the welcome process before the employee arrives. The more information that your new employee has on your company and your plan for their first few weeks, the less nervous they will be on their first day. Before an employee starts, they should be aware of the following pieces of information:

(1) The companies dress code;
(2) Office hours;
(3) What time they should arrive on their first day;
(4) The schedule for their first week.

Introduce them to the team

Generally, the first day of employment will be filled with training and paperwork. If this is the case, you are missing the chance to really welcome someone to your team. Employers should:

(1) Give the new employee a proper tour of the office;
(2) Introduce the new employee to their colleagues (remember it is not easy being the new kid at school);
(3) Ensure their workspace is stocked, organised and ready for use.

Once the employment has started – set achievable goals

Give your new employee direction and realistic goals right from the offset. By setting easy-to-reach goals, your new employee will find instant success and feel motivated about their decision to join your business.

Explain the companies long term goals

You should explain to the new employee your future goals and vision for the company and let them know where they fit in that picture. Making your employee aware of their role in the company’s long-term goals will provide them with job security and an understanding of the mission that you and your team are working to achieve.

Arrange one-to-one time each week

At Employment Law Services (ELS), we recommend that employers put aside 10-15 minutes each week for the first 2-3 months of a new employee’s employment. This will keep you informed of any potential challenges they may be facing and provide you both with some time to stay connected and engaged and provide each other with feedback.

Employer considerations

Implementing a thorough and consisted onboarding plan takes time and effort. There are a few critical errors that employers should recognise and attempt to avoid ensuring a new employees induction period runs smoothly.

(1) Avoid overloading a new employee with too much information too soon; the first few weeks in a new job can be daunting for any employee. Therefore, you do not want to give them excessive amounts of work before they are ready.
(2) Don’t assume new employees will understand everything right away; it is important that employers remember that even new employees with lots of industry experience should be given the opportunity to properly digest any additional information they are given.
(3) Don’t forget to evaluate the full process; measuring the outcome of your onboarding process should be the key to improving it. Assess your metrics and take note of any improvements you find in employee performance, increased retention and time to proficiency. Once you have the answers to this, you should consider how to improve the value of a better onboarded employee.

How can Employment Law Services (ELS) help?

It’s all very well having an employee who is qualified and experienced for the job, but if you want to get the most out of that employee an efficient onboarding process is key. If you are an employer who has any issues or concerns about the topics raised in this blog, give us a call today for your free consultation: 0370 218 5662.

5 Reasons for a fair dismissal

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Dismissal occurs when an employer decides to terminate the employment relationship. And, since the Supreme Court ruled that tribunal fees were a barrier to justice, claims against employers have increased by 90%. It is important to note that the average pay out for an unfair dismissal in the tribunal is £30,000.

Terminating an employee’s employment will never be an easy decision. However, at one point it may be the right decision for you and your business. So, when you do need to do this, ensure you have one of the following 5 reasons for a fair dismissal.

(1) Conduct
You can dismiss an employee if:

• They are incapable of doing their job to the required standard
• They are capable, but unwilling to do their job
• They’ve committed some form of misconduct
“Conduct” covers a variety of different acts, from not following instructions, to theft. It is therefore recommended that employers have policies in place that detail examples of what will be classed as misconduct, as well as what will be viewed as gross misconduct.

(2) Capability
Capability is defined in the Employment Rights Act 1996 by reference to the skills, aptitude, health or any other mental trait of the employee.
However, before dismissing an employee on the grounds of capability, employers should offer the employee support and extra training to help them reach the standard expected.

(3) Redundancy
Redundancies are another form of dismissal and can happen when an employee’s job no longer exists. This may be due to the employer needing to reduce its workforce, close the business, or certain work is no longer required.
Whatever the situation, it is important employers consider these key points:

• Employees have the right to not be unfairly selected for redundancy
• Employees may be entitled to a statutory redundancy payment and notice
• Redundancies can be compulsory or voluntary

(4) Statutory illegality
This form of dismissal is not used often but would occur if an employer continued to employ someone that resulted in them breaking the law. For example, you employ a lorry driver and they lose their licence and you have no other alternative (legal) role to place them in.

(5) Some other substantial reason (SOSR)
There is no legal definition of dismissals in this category and some would suggest that this is a “dust bin” category.
Some typical examples include:
• Conflicts of interest
• When a client refuses to work with your employee and you have no other work for them to carry out
• Personality clashes
• Where the mutual trust and confidence has been broken

Please note, that even where a dismissal is potentially fair “for some other substantial reason” the employer must ensure that they have followed procedure and have acted reasonably when dismissing the employee.

How can Employment Law Services (ELS) help?
If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

Know when to outsource a HR function

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As a small business owner, how many times have you gone into the office early to find mountains of paperwork that you just never seem to get through?

Most employers will understand the frustration of spending more time than necessary on non-revenue generating activities. Therefore, outsourcing a HR function can make the business more profitable and productive.

What size is the business?
Generally, employers with fewer than 80 employees tend not to have an in-house HR function. Instead, managers deal with any HR or employment issues that arise. However, with the business growing each day, staying compliant becomes a growing concern.

What services do SME’s require?
The nature of the work carried out by an employment law and HR specialist varies and is usually determined on the nature of the organisation and the roles carried out by its employees.

With regard to Employment Law Services (ELS), we work with employers who have no HR function to ensure their business consistently meets all of its legal requirements in terms of HR policies and employment contracts. As well as this, the team are qualified to advise and support business owners and managers who are faced with discrimination claims, redundancy issues, settlement agreements and dismissals.

How much does it cost to outsource?
At Employment Law Services (ELS) we keep our price structure simple. Our clients benefit from a cost-effective solution that saves them extensive amounts of time. Which in turn allows them to focus on the core business activities.

(1) Ad hoc Service

The team at Employment Law Services (ELS) provide UK employers of all sizes with employment law advice, support and representation on an ad hoc basis. Ad hoc work was initially established to help smaller start-up companies draft employment contracts and policies, ensuring new employers are complying with complex employment legislation whilst protecting their business.

(2) Annual Retainer Service

Our fixed-fee annual employment law and HR retainer service is provided by our specialist team of fully qualified employment law practitioners who understand how to balance compliance with UK employment legislation with the practicalities of successful people management in an operational environment where organisational objectives need to be met.
This helps employers manage their employees across all aspects of their employment from offer letters and contracts of employment, to managing absence, poor performance, disciplinaries, grievances and terminations.

Benefits of HR outsourcing 

  • Reduced cost
  • Increased efficiency
  • Access to improved HR IT systems
  • Improved management information (including human capital metrics)
  • Access to HR expertise not available internally
  • Increased flexibility and speed of response
  • Reduced risk

Employer considerations

Employers should consider the following factors when deciding to outsource:

  • Are you spending too much time on activities that do not generate profits or competitive success?
  • Are you carrying out jobs that waste valuable time and energy?
  • Do you have temporary tasks that arise, yet recur in cycles?
  • Do you require skills that are so specialised, but it would be impractical for you or management to do it?

If you are a business owner who employs people and you are not sure what to do next, contact us today for your free consultation. 0370 218 5662.

Get a Free Trial of Essential Training Courses for Directors, Managers and Employees

Posted on by @deliver_els

Employers have a number of implied duties in the employment contract including a duty to provide a safe and suitable working environment, a duty not to destroy mutual trust and confidence, and a duty to provide redress of grievances.

In many cases the acts of an individual employee during the course of their employment can be treated as having also been done by the employer meaning the employer could be found “vicariously liable” for acts committed by an employee that are in breach of current employment laws.

There is a defence available to an employer if it can show that it took all reasonable steps to prevent the employee from acting in breach of the law such as ensuring the existence of effective HR policies however, in of itself this is not enough. Employers should also provide appropriate training for Directors, Managers and Employees to ensure they are aware of, and able to meet their legal responsibilities.

Employment Law Services (ELS) offer accredited e-learning training courses that are designed to provide businesses of all types and sizes the opportunity to ensure compliance with their legal obligations.

Check out our range of e-learning courses here – FREE TRIAL

Time off for dependants: advice for employers

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From the first day of employment all employees have the right to time off to care for a dependant. Under s57a and s57b of the Employment Rights Act, all employees are entitled to a “reasonable” amount of unpaid leave. However, what is deemed as reasonable can be fact specific.

Who is a dependant?
A dependant is someone who relies on the employee for care, which can vary from a spouse, partner, child, parent or someone who depends on the employee, for example an elderly neighbour.

When can time off be taken?
• When a dependant falls ill, gives birth, is injured or assaulted;
• To make care arrangements for a dependant who has fallen ill or is injured;
• In consequence of the death of a dependant;
• To deal with an incident that concerns a child of the employee whilst in care of an educational establishment.

How much time off can an employee take?
An employee will be entitled to a reasonable amount of time off to deal with the emergency, but there is no set amount of time as it depends on the situation.
For example, if a dependant falls ill, an employee can take time off to take that child to the doctors and make care arrangements. An employer may then ask the employee to take parental or annual leave if they wished to stay off with the child for longer.

Does the employee have to give notice?
The employee does not need to give notice; however, they should provide the employer with a reason for the absence as early as possible and when they anticipate their return to work.

Should the employee be paid for this time off?
No, an employer does not have a statutory obligation to pay employees for time off to care for dependants.

An employer must not:
• Treat employees unfairly for taking time off, for example refusing them training or promotion;
• Dismiss an employee or choose them for redundancy because they asked for time off for a dependant;
• Refuse an employee reasonable time off.

How can Employment Law Services (ELS) help?
If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

Employment Law Quiz

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Employment legislation covers all areas of day-day business activities. This includes what employers can and cannot do in regard to employment contracts, recruitment, wages, dismissals, employee rights and working hours.

All employers – no matter what size – must ensure they comply with UK employment legislation, failure to do so can expose your business to costly employment tribunal claims. Test your knowledge here (answers at the bottom – no cheating!)

(1) When does a contract of employment begin?
  • The first day of employment
  • As soon as the candidate has accepted the job
  • When the candidate has been offered an interview
(2) What age is an employee entitled to the National Living Wage?
  • 16
  • 21
  • 25
(3) What are employees not entitled to?
  • The right to not be discriminated against
  • The right to a safe working environment 
  • The right to 7 weeks paid holiday
  • The right to not be harassed bullied or victimised 
(4) How many weeks of statutory maternity pay is a pregnant woman entitled to?
  • 5
  • 39
  • 52
  • 36
(5) If an employee has a disability, what must the employer do?
  • Make reasonable adjustments 
  • Dismiss them
  • Avoid discussing the subject with the employee
(6) An employee should be paid for all unauthorised overtime
  • True
  • False
(7) What is the current National Minimum Wage Rate for employees aged 21 and over?
  • £6.47
  • £7.38
  • £8.91
  • £10.05
(8) Can an employee claim they have been sexually discriminated against if they have only been employed by the company for 6 months?
  • Yes
  • No
(9) What is constructive dismissal?
  • An act of employment termination made without good reason or contrary to the country’s specific legislation
  • A situation in which an employee’s contract of employment has been terminated by the employer, where the termination breaches one or more terms of the contract of employment, or a statute provision or rule in employment law
  • When an employee terminates the employment relationship in response to the employers behaviour towards them

 

 

 

 

 

 

 

 

 

Answers

(1) A contract starts as soon as an offer of employment is accepted. Starting work proves that you accept the terms and conditions offered by the employer.

(2) 25. From April 2018, individuals aged 25 and over are entitled to £7.83ph.

(3) An employee is not entitled to 7 weeks paid annual leave.

(4) If an employee qualifies for Statutory Maternity Pay (SMP) it is paid for a maximum period of 39 weeks. It is paid: for the first six weeks at 90 per cent of their average gross weekly earnings with no upper limit. for the remaining 33 weeks at the lower of either the standard rate of £140.98 or 90 per cent of their average gross weekly earnings.

(5) It is an employers duty to make reasonable adjustments to allow disabled employees to carry out their work activities with ease.

(6) True

(7) £7.38

(8) Yes

(9) Constructive dismissal occurs when an employee terminates the employment relationship in response to the employers behaviour towards them.

Launch of Our New Website

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Employment Law Services (ELS) is proud to announce the launch of our new website which coincides with our expanding role as a leading provider of Employment Law and HR Services for UK employers.

We’re confident our new website will provide users with an easier way to learn about our multi-award winning Employment Law and HR Services and enable them to quickly access the various resources we offer to UK businesses such as our popular SME Employer Toolkit – https://employmentlawservices.com/employment-law-advice/sme-employer-toolkit/

We will continue to provide timely Employment Law Updates and News via our blog and visitors to the site can subscribe to our Free HR Advice guides and e-bullitns and connect with us via social media using the integrated social media buttons.

We hope you find the new website useful as a reliable source of Employment Law information and a valuable resource for those requiring Employment Law Advice and Support.

How hot is too hot to work?

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It doesn’t happen often, but when the country swelters in rising temperatures, it’s not everyone’s idea of fun.

Hot weather is great if you are lying on a beach or in your back garden, but not necessarily in the workplace. The Chartered Institute of Building Services have recommended the following temperatures:

Heavy work in factories: 13°c
Light work in factories: 16°c
Hospital wards and shops: 18°c
Offices and dining rooms: 20°c
Temperatures that differ substantially from this can pose a health and safety risk on the employee. When the workplace gets too hot it is more than just an issue of comfort. If employees get too hot, they risk dizziness, fainting and even heat cramps. High temperatures also mean that there is an increase in the likelihood of workplace accidents due to reduced concentration; slippery, sweaty palms, as well as an increase of discomfort of personal protective gear which can result in reduced protection through inappropriate usage or non-usage.

Employees at greater risk of heat stress include those over the age of 65, those who have medical conditions such as, obesity, high blood pressure or heart diseases and those that take medications that may be affected by extreme heat.

Legal position

The law says that an employer must provide a working environment which is as far as reasonably practical, safe and without risks to health. As well as this, employers should assess risks and introduce any necessary prevention or control measures.

There is no maximum temperature for workers, although the Workplace (Health, Safety and Welfare) Regulations state the temperature inside workplace buildings must be ‘reasonable.’ However, there is no consensus over what “reasonable” is and many workers are forced to work in temperatures which are not only uncomfortable, but which could damage their health.

The lack of legal maximum has been seen as a major problem. The Approved Code of Practice does set a minimum temperature along with guidance on how it can be achieved, however, no maximum. Because of this, health and safety representatives often find that employers refuse to accept arguments that they have to take action on high temperatures, yet, far more inclined to take action when it gets too cold.

The Approved Code of Practice sets out a few examples of what action employers can take to ensure a reasonably comfortable temperature when working, including:

insulating hot plants or pipes
providing air cooling plants
shading windows
sighting workplaces away from places subject to radiant heat

If this fails, the Code of Practice states further that employers should install cooling systems, increase ventilation or install fans.

What next?

While these regulations provide some guidance for employers, the lack of guidelines may well be exposing employees to a higher risk of heat stress.

In conclusion, it would appear that by maintaining a comfortable temperature in the work place will benefit both the employer and employee. Employees are able to continue working well in a comfortable environment and employers achieve a happy and productive workforce.

How can Employment Law Services (ELS) help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

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