Dress Code - To heel or not to heel
A recent case has brought the issue of dress code into the headlines. A temporary secretary started on her first day as a receptionist in the large Accountancy Firm Price Waterhouse Cooper, only to be told she had to go and buy herself a pair or heeled shoes as the flat shoes she wore were not deemed to be appropriate as they were not part of the dress code that the recruitment agency stipulated. She refused, stating that male employees did not have to wear heels so why should she. She was sent home without pay.
So this brings us to the question, how important is a dress code in the workplace?
The employer is fully within his rights to include a policy in the company handbook stating that employees must wear a particular dress code, i.e. smart, business-like attire or a uniform if there is one. If the employees are dealing with customers on a face to face level or representing the company in any way then it is especially important that the employees are seen to be dressed appropriately in neat and smart attire.
But can an employer make requests from one group of employees and not from another? Can an employer request that female staff wear heels over flat shoes? In this day and age and with all the advancements made for equality across all I would have to say no. But obviously there are some archaic ideologies still in practice out there.
Commenting on the situation, Rebecca Hilsenrath, chief executive of the Equality and Human Rights Commission in the UK, said: "Forty-one years on since the introduction of the Sex Discrimination Act, it's baffling that there are still some companies that are practicing this sort of outdated sexism."
"In our view, unless equally stringent requirements are applied to male workers, it is likely that a requirement to wear two inch heels would constitute unlawful discrimination, and we will look into whether action needs to be taken."
The employee in question has now set up a petition asking for it to be made illegal for companies to require women to wear the footwear for their jobs.
Bright Contracts – Employment Contracts and Handbooks.
BrightPay – Payroll & Auto Enrolment Software.
New National Living Wage from 1 April 2016
From 1 April 16, a new National Living Wage will come into effect. The new Living Wage, set at £7.20 per hour, will be compulsory to all workers aged 25 years and above. This increase is part of an overall plan by the Chancellor that a compulsory national living wage of £9.00 per hour will be in existence by 2020.
In addition, the financial penalty payable by employers who underpay minimum wage rates will increase from 100% to 200% of the underpayment due to each worker. However, this will be halved to 100% if the fine is paid within 14 days.
Research shows that the higher wage rate will have the greatest impact in the retail and hospitality sector.
The question on many employers’ lips now is how to fund this increase. Reports suggest that there are three common coping mechanisms:
- Accept lower profits
- Reduce overtime and bonuses
- Reduce employee numbers through redundancy and/or slower recruitment
Other facts employers need to know include:
- Living Wage does not apply to self-employed
- Tips cannot be counted towards the Living Wage
- Living wage will apply regardless of geographical location, it is not just a London initiative.
So regardless of how you will fund the new wage bill it is important that you make the changes come 1 April. Failure to do so could see your company facing hefty fines and being named and shamed. In October 2015 HMRC named 113 employers that hadn’t been paying workers fairly. As well as many small businesses they included fashion chain Monsoon Accessorize and outlets of sandwich chain Subway.
Bright Contracts – Employment Contracts and Handbooks.
BrightPay – Payroll & Auto Enrolment Software.
EU court rules travelling to work 'is work' for employees with no fixed office
Large numbers of workers could be entitled to more pay or a reduction in hours due to a ruling by the European Court of Justice. The ECJ has ruled that time spent travelling to the first and from the last appointments by workers without a fixed office should be regarded as working time.
The adjudication comes in a case brought by the Spanish trade union workers at the security firm Tyco. However, because the ruling covers the European Union working time directive, it is expected to affect workers across the bloc. The court said its judgement was about protecting the "health and safety" of workers as set out in the European Union's working time directive. One of its main goals is to ensure that no employee in the EU is obliged to work more than an average of 48 hours a week.
The British government tried to intervene in the case, arguing that allowing travelling time to be counted as working time would lead to substantially higher business costs. However the European court dismissed this argument and sided with the Spanish employees. This means time spent by tradesmen, sales representatives and carers driving to their first job of the day and home from the last job of the day will count as time spent in work. The ruling has angered some business groups such as Business for Britain who argue European courts are too powerful and have too much influence over British affairs.
The court ruling said: "The fact that the workers begin and finish the journeys at their homes stems directly from the decision of their employer to abolish the regional offices and not from the desire of the workers themselves.
"Requiring them to bear the burden of their employer's choice would be contrary to the objective of protecting the safety and health of workers pursued by the directive, which includes the necessity of guaranteeing workers a minimum rest period."
Bright Contracts – Employment Contracts and Handbooks.
BrightPay – Payroll & Auto Enrolment Software.
Zero-hours Contracts up by 19%
According to the Office of National Statistics (ONS), the number of workers on zero-hours contracts has increased by 19% from 624,000 to 744,000, a fifth in the last year alone,
A zero-hour contract is an employment contract that an employee has that has no set minimum hours or definite schedule of work. It allows employers to hire employees with no guarantee of work. Employees under these contracts tend to have to be very flexible and are expected to be "on call" and are only compensated for actual hours worked.
The main types of people on zero- hours contracts are single parents, students, people under 25 and over 65 and women compared to other employed staff. The main sectors offering zero-hours contracts are:
- Tourism and hospitality sector
- Health sector
- Education sector
Zero-hours contracts are often considered controversial as these types of contracts do not offer enough financial stability or security. Employers could also abuse these type of contracts by offering more hours to favoured employees and fewer hours to those less valued employees. A refusal to work at any one time may result in a prolonged period of lack of work. Employees under zero-hours contracts also do not have the same employment rights as employees on traditional contracts. They only have basic social security rights such as maternity/paternity benefit, holiday pay and health insurance. Should an employee earn less than £5,772 in the tax year, they will not receive any credits for the state pension.
Research shows that workers on zero-hours contracts earn less per hour than employees in similar positions. A study by the TUC in December 2014 showed the average weekly earnings for such employees were £188 in comparison with permanent employees earning £479. The average person on a zero-hours contract typically works on average 25 hours per week. The ONS found that 40% of those on zero-hours contracts wanted to work more hours than they are offered.
Zero-hours contracts do offer flexibility for certain employees. Mark Littlewood, the Institute of Economic Affairs' director general has said "Not everyone is able to work at fixed and regular times and adaptable contracts such as these offer the opportunity of employment to students, single parents and many more".
Bright Contracts – Employment Contracts and Handbooks.
BrightPay – Payroll & Auto Enrolment Software.
Increase in penalties for failure to pay the UK National Minimum Wage... IS NOW IN FORCE
The maximum financial penalty for a failure to pay the National Minimum Wage increased this week. Previously, the maximum penalty was £20,000 per notice of underpayment, irrespective of the number of employees who have been underpaid by the employer. From 26 May 2015, the maximum penalty of £20,000 can now be calculated on a per worker basis rather than on a per employer notice basis.
Bright Contracts – Employment Contracts and Handbooks
BrightPay – Payroll & Auto Enrolment Software
What is Vicarious Liability?
Vicarious liability is a form of strict, secondary liability that arises under the tort law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator.
What does this mean for Employers?
Employers are vicariously liable for the negligent acts or omissions by their employees in the course of employment (sometimes referred to as 'scope of employment').
The employer is charged with legal responsibility for the negligence of the employee because the employee is held to be an agent of the employer. If a negligent act is committed by an employee acting within the general scope of her or his employment, the employer will be held liable for damages.
One such area that employers need to watch out for with regard to the principle of vicarious liability is the area governing driving company vehicles
Some examples of cases heard where vicarious liability was upheld;
Smith v Stages (1989), an employee was involved in a road accident whilst travelling back to his normal place of employment. He had been working elsewhere. This was held to be within the course of his employment. Lord Lowry considered a decisive factor being that he was paid a normal working day pay for his day of travel.
Rose v Plenty 1976 which involved a milkman who, against company orders, took a 13 year old boy with him on his round. The boy was injured due to the milkman's negligent driving. The boy, who sued both the milkman and the dairy, initially lost his case but the matter came before the Court of Appeal when Lord Scarman found a crucial factor to be that the boy was actually helping in an unauthorised way by helping deliver milk.
The compensation explanation of vicarious liability holds that the logic for the doctrine is to ensure that innocent plaintiffs have a solvent employer against whom to sue and if we are to look at both the employee and employer it is more likely to be the employer who is wealthier and/or carries insurance.
The courts have held that vicarious liability does not arise in situations where the wrongful acts are not within the course of employment. Activities which are clearly outside the scope of the employment cannot give rise to vicarious liability such as driving the company vehicle to the shops or cinema in the evenings.
If you have no Company Vehicle Policy in place then just click here and get it sorted today! It is important to set up parameters that clearly outline what is acceptable and what is not when driving company vehicles.
Area covering points on your licence, speeding, accurate disclosure of any traffic violations, eye sight issues, parking in unauthorised areas, picking up unauthorised personnel etc can be included.
Bright Contracts – Employment Contracts and Handbooks.
BrightPay – Payroll & Auto Enrolment Software.
Employment Appraisals, what are they?
Employment Appraisals are meetings that can be held every three months for the first year of employment and six months thereafter. They help clarify expectations and required standards, assist the development of new and existing staff and help keep a record of experience, training, strengths, and weaknesses.
Managers carry out appraisals to monitor actual performance; deal with problem areas and most importantly gain valuable feedback from employees. They should be conducted in a positive and open manner to help create an effective working relationship between the employee and the employer.
They are extremely useful and necessary during an employee’s probationary period. During the probationary period, performance in doing the job and potential abilities are evaluated to determine suitability for the position and the company. This should be set out in the company’s handbook which outlines the company’s probationary policy.
In a nutshell appraisals help the company:
• Evaluate employee performance during the probationary period
• Praise and encourage individual strengths
• Identify training requirements
• Evaluate suitability for continued employment
The company should provide adequate training and additional assistance if required, should the employee fall short in their duties. It is important to document meetings with employees during their employment and keep a copy of such on their staff file. You will need this documentation should a grievance arise during or after employment and also to refer back to it, if promises or follow up were made. It is important to keep up to date, accurate records, should you find the employee unsuitable and it becomes necessary to dismiss them.
Bright Contracts - Employment Contracts and Handbooks
UK National Minimum Wage
The Small Business, Enterprise and Employment Act 2015 is now an act of law and will amend the current penalty for underpayment of the National Minimum Wage (NMW).
Part 11 of The Small Business, Enterprise and Employment Act 2015 contains measures that amends section 19A of the NMW Act so that the maximum penalty will be determined by the amount owed to each worker and the limit on the penalty will be so the extent to which the amount owed to each individual worker can be taken into account. Previously the maximum fine was just £5,000 for each employee.
Secondary legislation will be introduced to ensure that employers in breach of the NMW regulations will be subject to a fine of up to £20,000 for every underpaid worker.
Most workers in the UK over school leaving age are entitled to be paid at least the NMW. The NMW rates are reviewed each year by the Low Pay commission.
Current NMW rates
- £6.50 for workers 21 and over
- £5.13 18 - 20 yrs
- £3.79 for 16-17 yrs, who are above school leaving age but under 18
- £2.73 for apprentices under 19 or 19 or over who are in the first year of apprenticeship.
New NMW rates from 1 October 2015
- £6.70 for workers 21 and over
- £5.30 18 - 20 yrs
- £3.87 for 16-17 yrs, who are above school leaving age but under 18
- £3.30 for apprentices under 19 or 19 or over who are in the first year of apprenticeship.
It is important to note that these rates, which come into force on the 1st October 2015, apply only to pay reference periods beginning on or after that date.
If HMRC finds that an employer hasn’t been paying the correct rates, any arrears have to be paid back immediately. There will also be a penalty and offenders can also be named by the government.
It is the employer’s responsibility to keep records proving that they are paying the minimum wage - most employers use their payroll records as proof. All records have to be kept for 3 years.
It is important that information outlining how much and how often an employee gets paid be shown very clearly in the written statement of particulars. The employer must provide the employee with a copy of this written statement within 2 months of their start date. This is the law!
If you have no contracts in place or wish to update your current employee contracts then simply click here? There is no need to use HR specialists or solicitors; Bright Contracts keeps things simple and easy for everyone!
Bright Contracts – Employment Contracts and Handbooks.
BrightPay – Payroll & Auto Enrolment Software.
What you need to know when relationships are failing!
All employers need to know how to discipline their employees fairly. Legislation and Codes of Practice place great emphasis on procedural fairness when dealing with grievances. In some instances, a grievance may lead to a constructive dismissal if it is not handled correctly. Mishandling disciplinary issues gives rise to a huge number of employment tribunal claims every year including breach of contract, unfair dismissal and discrimination.
Do you know employer’s in the UK are not legally obliged to follow the Acas statutory Code of Practice on discipline and grievance procedures should it become necessary to dismiss an employee. However, failure to do so can result in any compensation awarded in a subsequent claim brought by the employee being increased by up to 25% for not following fair and consistent procedures.
Employers who have disciplinary procedures in place must put their procedures in writing, and make it easily available to their employees (for example, by giving details in the staff handbook). It should include the procedures followed during the disciplinary process, what performance and behaviour might lead to disciplinary action, and what action your employer might take.
An employer should follow a proper disciplinary process if it believes that an employee may be guilty of misconduct. As far as possible, the aim of the disciplinary procedure should be to improve conduct, rather than simply to punish wrongdoing.
Employers are advised to follow the Acas statutory Code of Practice on discipline and grievance procedures. It provides basic practical guidance to employers, employees and their representatives and sets out principles for handling disciplinary and grievance situations in the workplace. Click here for a detailed overview.
Disciplinary procedures should include the following steps:
1. A letter setting out the issue.
2. A meeting to discuss the issue.
3. A disciplinary decision.
4. A chance to appeal this decision.
Having a well drafted company disciplinary policy and procedure in place is critical for all employers; without the latter in place, defending claims of unfair dismissal or constructive dismissal would be incredibly difficult.
The majority of unfair dismissal claims are lost by employers because they fail to follow fair procedures during the disciplinary process or simply don’t follow any!
Bright Contracts – Employment Contracts and Handbooks.
BrightPay – Payroll & Auto Enrolment Software.
Criminal checks on potential new employees
Employers who carry out 'back-door' criminal record checks on potential candidates seeking employment with their company, can now face criminal charges.
There is a well-established lawful process for checking criminal records such as the DBS formerly known as a CRB check, but some rogue employers have tried to bypass that by demanding prospective employees use their rights under the Data Protection Act (DPA) to see information held about themselves.
This ‘Enforced Subject Access’ bypasses the legal criminal record check process, overriding safeguards that only allow for checks and disclosure of information appropriate to the role being applied for.
The Ministry of justice has, just this month outlawed this practice as and from the 10th of March 2015. “It is now a criminal offence under section 7 of the DPA to require an individual to make a “subject access request” to retrieve information about their convictions and cautions and provide that information to a person”
(Example)
An individual applies for a position as a waiter at a restaurant, but is told that they cannot be offered the position until they provide a copy of their criminal record. The employer states that they must make a subject access request in order to gain this information and they will only be appointed if it is supplied. The employer will have committed an offence under subsection 56(1) (a) of the DPA Enforced Access Employer Requests
An individual or employer who requires someone to make a subject access request is committing a criminal offence. The request alone is now an offence. It is now time to ensure your company changes any necessary prerequisites in the recruitment phase to ensure you are in compliance.
Committing such an offence in England and Wales can carry an unlimited fine, while in Scotland the fine can be unlimited if heard under solemn procedure or £10,000.In Northern Ireland, the maximum fine if convicted under a summary offence is £5000, or if convicted on indictment, the maximum fine is unlimited (unless expressly limited by statute)
Further information can be found on the ICO website using this link Code of Practice
It is now time to inspect your current recruitment policy and procedures and check you are not in breach of the aforementioned Act. Further information can be found on the ICO website.
Bright Contracts – Employment Contracts and Handbooks.
BrightPay – Payroll & Auto Enrolment Software.
