New rights for expectant fathers & partners
From today, 1 October 2014 fathers/mother’s partners have the right to take time off to accompany the pregnant woman to ante-natal classes.
Under the new regulations, fathers/partners across England, Scotland and Wales, may take unpaid time off for up to two ante-natal classes. The time off is capped at six and a half hours for each appointment, giving the employee enough time to travel to and from the appointment.
The Government has issued guidance on the change which is available here.
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/351413/bis-14-1063-time-off-to-accompany-a-pregnant-woman-to-ante-natal-appointments-employer-guide.pdf
This change forms part of the Governments plans to introduce shared parental leave. Shared parental leave, which will come into effect for births/adoptions that fall on or after 5 April 2014, will allow mothers, fathers, partners and adopters to choose how to share time off work after their child is born or placed.
Employers need to ensure their policies and procedures are kept up-to-date with these policies.
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Four UK Employment Law Changes from 1st October 2014
2014 has been a busy year already for employers with the changes in flexible working and the introduction of early conciliation by ACAS. October sees the introduction of further amendments:
1. Antenatal rights for fathers and partners
Fathers and partners will have the right to unpaid time off to accompany a pregnant woman to an antenatal appointment on up to two occasions.
2. National minimum hourly wage increase
a. The adult rate will increase from £6.31 to £6.50
b. The rate for 18 – 20 year olds will increase from £5.03 to £5.13
c. The rate for 16 – 17 year olds will increase from £3.72 to £3.79
d. The rate for apprentices will increase from £2.68 to £2.73
3. Employment Tribunals must order equal pay audits
Where a tribunal finds an employer in breach of equal pay, they must order the employer to carry out an equal pay audit unless an exception applies
4. Increased protection against unfair dismissals for Reservists
From 1 October, where an employee is dismissed because they are a member of a reserve force, the normal two-year service requirement for bringing an unfair dismissal claim does not apply, and an employee may bring a claim immediately in these circumstances.
Bright Contracts – Employment Contracts and Handbooks.
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Giving an employee reference - be careful!
Writing a reference for an ex-employee may at the outset seem straight forward, however employers need to be cautious.
What Can Go Wrong
If you provide a reference you have a duty to take reasonable care to ensure it is true, accurate, and fair and not misleading.
• If you provide a bad reference that you can’t substantiate, you run the risk of your former employee suing you for damages if they did not get the job.
• If you provide a glowing reference for an employee who has not been satisfactory and that employee goes on to perform badly in their new job, the new employer could claim damages against you.
Your Options
• Do not give references as a matter of policy. Employers are generally under no obligation to provide references. If you decide on this option as policy it is advisable to reply to reference requests with a statement that it is not your policy to give them, particularly to avoid misunderstandings perhaps with employers believing that you had problems with the employee.
• Give the bare facts: many employers provide the minimum details e.g. the employee’s position and dates of employment. Again if this is your policy it is advisable to state that it is your policy not to provide further details.
• Providing a full reference. You may decide to give a full reference giving details for example about the employees attitude, timekeeping, drive etc. If you decide on this option remember you have a duty to ensure the content is true, accurate, and fair.
• Do not include sensitive personal data in a reference, e.g. information about the individual’s health, race or trade union membership, without first obtaining the ex-employee’s consent.
• Include a disclaimer: many companies aim to limit liability by adding a disclaimer stating that they cannot accept any liability for errors or omissions in the reference. However, in reality, how much protection a disclaimer will provide may be limited.
Whatever option you decide to go with the key is to be consistent. Inconsistency could lead to a claim of discrimination from a disgruntled employee. It is best to establish a policy clearly stating whether you give references, if you do, who should give them and what they should contain.
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ACAS early conciliation scheme - is it a success?
Since 6th May 2014 any employee who lodges an employment claim must have made an Early Conciliation notification to ACAS. On receipt, ACAS begin a process of trying to resolve the dispute, and must issue an Early Conciliation certificate before the claim can progress to an employment tribunal.
Although employees must notify ACAS of their intention to bring a claim to an employment tribunal, actual participation in any early conciliation efforts is voluntarily. Equally, if ACAS contacts the Company regarding early conciliation their participation is also optional.
Results to Date
Over the first two months that the service was operations ACAS received between 6,500 and 7,000 notifications per month.
Interestingly 10% of notifications brought to ACAS were from employers rather than employees. This is a canning move by employers seeking to pre-empt possible tribunal claims from employees. By raising a notification to ACAS, employers are hoping to save money on legal and tribunal fees by resolving the issue with the employee early.
The success of the scheme is still very much in the balance. ACAS have, very positively, quoted that only 7% of employees and 9% of employers did not want to participate in early conciliation, however on further inspection only a very small percentage of notifications have been successfully resolved during the Early Conciliation Process. Some of the reasons given for failed processes included: the ACAS conciliator was ineffective and that the process was poor.
Time will tell whether or not this scheme is a success, what does seem apparent is that the scheme is very much at an early teething stage.
Bright Contracts – Employment Contracts and Handbooks.
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Can employers legally enforce a dress code?
Yes, employers may legitimately request that their employees dress or appear in a certain way at work once they can show a reasonable business reason. There are various reasons why employers may wish to introduce such measures:
• Health and Safety: for example health care workers may not be allowed to wear jewellery for safety reasons around patients, certain clothing may not be allowed in factories while operating machinery, and employees in the food industry may be required to have their hair tied back.
• Promoting a certain image: an employee’s appearance can reflect the ethos of the organisation, which can be particularly important for those dealing with customers or business contacts. For example, sales representatives generally need to maintain a high standard, whereas in some organisations uniforms are used to communicate the corporate image.
Key Considerations
• Non-discriminatory: any dress code should be non-discriminatory and should apply equally to men and women, although standards can be different, e.g. women must wear “business dress” and men must wear a “suit and tie”.
• Religious Dress: this area should be dealt with extremely cautiously. Employees should generally be permitted to wear clothing/jewellery that represents their religious belief. Employers who put restrictions in this area should have clear business or safety reasons for doing so which do not indirectly discriminate against these employees.
Introducing a Dress Code
Employers who decide to introduce a dress or appearance code should have it clearly drafted in a policy which should be clearly communicated to all staff so they understand what standards are expected of them. Employers must be prepared to make reasonable adjustments to their policy for disabled employers if required. Employees who do not comply with set standards may be subjected to disciplinary procedures.
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Women facing 'maternity discrimination' in the workplace
A £1m research project to help understand the extent of pregnancy discrimination in the workplace and how best to tackle it was recently commissioned by the Government and is to be undertaken by the Equality and Human Rights Commission (EHRC).
This comes as a recent survey of 500 managers by law firm Slater & Gordon revealed that more than 40% admitted they are generally wary of hiring a woman of childbearing age, while a similar number would be wary of hiring a woman who has already had a child or hiring a mother for a senior role.
A further survey of women in the UK earning £7.44 an hour or less has found that ten per cent of mothers who returned to work in the last five years came back to a more junior role. Among those returning to a lesser job, a third did so because their role had been given to someone else against their wishes and for one in ten it was because their role had been made redundant. Half said they came back to a more junior job because their previous role was either not available part-time or the hours were not suitable.
A spokeswoman for the Department of Business, Innovation and Skills said: “Pregnancy discrimination is unacceptable; there is no excuse for it. Mothers coming back to work after maternity leave have the legal right to return to the same or similar job. That’s why the Government has taken steps to make sure workplaces are fair and reflect modern society - giving all employees the right to request flexible working as well as introducing Tax Free Childcare and shared parental leave from 2015.”
TUC General Secretary Frances O'Grady also added: "It is illegal to not give someone a job on the grounds that they may have children in the future. Employers that do this are not only breaking the law but being incredibly stupid as they are missing out on many of the country's brightest young workers."
By having contracts of employment and an employee handbook in place, female employees can be given peace of mind and have clarity on what their maternity leave entitlements and rights are. Our Bright Contracts handbook template comes complete with a dedicated policy on Maternity Leave which complies with current statutory requirements.
Bright Contracts – Employment Contracts and Handbooks.
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New Measures for Zero-hours Contracts
Employees on zero hours contracts will have the freedom to find work with more than one employer after Business Secretary Vince Cable announced plans on 25th June 2014 to ban exclusivity clauses. This action follows a government consultation into zero hours contracts which received over 36,000 responses, with 83% were in favour of banning exclusivity clauses in zero hours contacts. Exclusivity clauses prevent an individual from working for another employer, even when no work is guaranteed.
The ban, set to benefit the 125,000 zero hours contract workers estimated to be tied to an exclusivity clause, is part of a bid to clamp down on abuses in the workplace by less scrupulous employers. As a result, it will allow workers to look for additional work to boost their income should they wish to do so.
Speaking on the subject, Business Secretary Vince Cable said "unscrupulous" firms had abused the flexibility offered by the contracts. "For many workers this is a perfectly sensible arrangement. But a lot of people on such contracts aren't sure what their rights are and we want to make them more transparent so people know what their rights are," said Mr Cable.
Despite unions and campaign groups pushing for zero-hours contracts to be banned, Mr Cable stated they do have a place in the labour market, creating work opportunities for students and older people.
Cable also revealed the Government is opening a consultation on how to stop rogue employers evading the ban through measures such as offering one-hour fixed contracts.
Bright Contracts – Employment Contracts and Handbooks.
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New Flexible Working Structure
On 30th June 2014, Flexible Working Regulations will be extended giving the right to request flexible working arrangements to all employees with 26 weeks service. Up until now only parents with children under 17 years, or 18 if the child is disabled, and certain carers were eligible to request flexible working.
Flexible working is a way of working that suits the employee’s needs e.g. having flexible start and finish times, working from home, part-time etc.
With the changes, the formal procedure for applying for flexible working has also been reduced to a minimum. However, some key requirements will still apply:
• Employees may only submit one written request in a 12 month period
• All requests must be dealt with in a “reasonable manner”
• All requests, including any appeals, must be fully dealt with within three months of receiving the initial application
• Any change to an employee’s terms and conditions will be a permanent change, with no right to revert to their original terms
• Employers can decline requests on eight (very wide) business grounds:
o Extra costs which will damage the business
o The business won’t be able to meet customer demand
o The work can’t be re-organised among other staff
o People can’t be recruited to do the work
o Flexible working will have an effect on quality and performance
o There’s a lack of work to do during the proposed working times
o The business is planning changes to the workforce
Generally, a tribunal will not investigate the rights and wrongs of a refusal, however they will look to see whether proper procedures have been followed. Maximum compensation for a failure to comply is eight weeks’ pay (currently capped at £464 per week).
Employers should be reviewing their internal policies and procedures to ensure that they comply with the amended legislation.
Bright Contracts – Employment Contracts and Handbooks.
BrightPay – Payroll & Auto Enrolment Software.
Thousands of underpaid workers benefit from HMRC NMW investigation 6 June 2014
More than 22,000 workers denied the National Minimum Wage (NMW) have received £4.6m in unpaid wages following an HMRC crackdown.
HMRC conducted 1,455 NMW investigations in 2013/14 and found arrears in 47% of cases – the highest strike rate since NMW was introduced.
During the period, HMRC issued 652 financial penalties worth £815,269 and recovered average arrears of around £205 per worker.
Jennie Granger, director of enforcement and compliance at HMRC, said: “Paying the National Minimum Wage is not a choice – it’s the law. HMRC will continue to ensure that workers get at least the wage to which they are legally entitled.
“Where an employer ignores these rules, we will ensure that any arrears are paid out in full and the employer is fined. Rogue employers be warned – we will find you and you will pay.”
In one case a social care provider had not paid its staff for travelling time and other hours worked and was told to repay over £600,000 to almost 3,000 workers.
And a recruitment agency was ordered to pay £167,000 to workers, including some it had classified as unpaid interns.
As a result of the investigations, TUC general secretary Frances O’Grady is calling for further action to be taken by the government and for employers that knowingly underpay their staff to be named and shamed.
“Nearly a million UK workers rely on the national minimum wage, which has become a vital lifeline. There must be no hiding places for companies who flout it.
“The action taken by HMRC is a welcome step but must be the beginning of a concerted campaign that also raises awareness about the right to a legal wage among those being exploited.”
Bright Contracts – Employment contracts and handbooks.
BrightPay – Payroll & Auto Enrolment Software.
Changes to Holiday Pay Calculations
As we enter the summer holiday season employers need to ensure that they are paying their employees correctly during annual leave.
A recent decision by the European Court of Justice (ECJ) will impact how some annual leave pay is calculated.
Do you pay employee’s commission? Is the commission calculated based on the amount of sales made or actual work carried out? If yes, according to the ECJ, holiday pay should include commission pay.
The decision was made in the case of Locke v British Gas Trading and Others. Locke was a Sales Representative whose commission made up approximately 60% of his remuneration. After taking two weeks leave in 2011, Locke suffered financially as he was unable to generate sales for the period he was on annual leave.
The ECJ ruled that the purpose of annual leave is to allow a worker to enjoy a period of rest and relaxation with sufficient pay. By not including commission payments with holiday pay, employees are less likely to take annual leave so as to avoid financial hardship.
It has been left to the national courts to determine how to calculate the commission to which a worker is entitled, however the court did suggest that taking an average amount of commission earned over a certain period, e.g. the previous 12 months.
Employers are advised to review their commission policies to establish which, if any, payments need to be included in annual leave pay.
Bright Contracts - Employment Contracts and Handbooks
