Monthly Archives: June 2016

Farewell EU – What Now?

Union Jack-01

“The will of the people must be respected” says Prime Minister David Cameron on the outcome of the UK referendum on membership of the EU. One can’t escape the view that this should read “the will of the people must be interpreted.”

As of 6.00 am today, we as a nation appear to have become victims of unanticipated consequences, and are now at the mercy of outcomes that are not the ones foreseen and intended by our purposeful actions. I fear that full appreciation of the consequences of our actions will not be achieved for some time as predictions indicate that it will take at least 2 years to achieve disentanglement from our European partners.

In the immediate haze of global reaction, currency free-fall, stock exchange hysteria and concern about future trading conditions with the remaining 27 member states of the European Union, there is a risk that UK businesses may defer undertaking a strategic review of the impact on their workforce resulting from Brexit. In the short term, the biggest risk to workforce productivity will be uncertainty, particularly for those members of the workforce that are EU nationals and those that are British nationals working throughout the EU, currently estimated to be around 1 million. The uncertainty could manifest itself in key individual members of the workforce exiting of their own accord to seek greater stability elsewhere. It is essential that individual businesses develop effective operational and communication strategies without delay!

As UK businesses grapple with the challenges of negotiating commercial trade agreements in the new post EU membership world of tariffs and barriers to entry, it is a realistic possibility that revenue streams will become less profitable and this may inevitably lead to a rebalancing of profit margins by reducing headcount. A strategic review now, if operational effectiveness is to be maintained, will be well worth the effort.

And what, I hear you cry, of existing EU Legislation? The short answer is that a lot of EU laws are already incorporated into our domestic legislation through Acts of Parliament and Regulations, while there may very well be some tinkering in the medium to long term, it is unlikely, in this employment lawyer’s view, that our exit from the EU will result in any wholesale overhaul of our domestic employment legislation.

When the dust finally settles on the UK’s exit from the EU, the issue of Border controls and immigration status will become a further challenge for UK business whether domiciled in the UK or within the EU and using UK labour. While this may very well be 2 years away, businesses are encouraged to consider the implications now and devise a strategy to deal with potential key skills loss, recruitment and succession planning.

For advice and assistance with any employment law, HR or corporate immigration issue contact FG Solicitors on 01604 871143 or visit our website at www.fgsolicitors.co.uk for further information.

Brexit – What Are the Consequences for Employment Law?

brexitSUMMARY: No one can know exactly what the consequences will be, but below are some of the areas we consider are likely to be affected.

What does the decision to leave the EU mean for employment law? This remains a personal view, as no one can know exactly what the consequences of the leave vote will be. It may be that nothing significant changes immediately (as EU laws form part of UK law), but the lack of a requirement to comply with EU law in the future is likely to shape future legislation and may lead to a reduction in workers’ rights. Here are some of the areas that we consider are likely to change in the foreseeable future:

1. Discrimination – A cap may be applied to compensation for discrimination claims; successful claimants can in theory be awarded uncapped compensation at present.  One of the most extreme examples of this is when a doctor was awarded £4.5m for successful sex and race discrimination and unfair dismissal claims in 2011.

2. Working Time - There may be amendments in relation to the Working Time Regulations so that there is a less onerous burden for employers.  This is relevant in relation to holiday, rest breaks and rest periods and the 48 hour working week.  It may be that legislation will be introduced permitting workers to completely opt out of the Working Time Regulations.

3. Agency workers – There may be changes in relation to the protection which agency workers currently enjoy.  The Directive from the EU in relation to agency workers was not a popular piece of legislation and (amongst other things) requires employers to provide equal basic working and employment conditions for agency workers after 12 weeks’ work.

4. Data protection – There will need to be some discussion about the General Data Protection Regulation, which comes into force in May 2018, just before the earliest time (2 years) Britain can exit the EU.  This will replace the existing Data Protection Act and related legislation.  If Britain is to continue to trade with the EU, it will be expected to have minimum standards in place.

5. Redundancy consultation – There may be reduced redundancy collective consultation requirements.  For example, the timescales for consultation may be shortened and/or the threshold for the number of employees to trigger the need to collectively consult may increase from 20 to, for example, 100 employees.

6. Immigration - There are likely to be immigration controls introduced for workers coming from the EU and entering the EU from Britain.

We will keep you updated as any changes are announced.

Contact Details

If you have queries on the above areas, please contact fgmedia@fgsolicitors.co.uk.

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Top Tips for Effective Performance Management

efficacy_levelSUMMARY: Getting the best from its greatest asset, its staff, should be every organisation’s goal. This can be achieved using a combination of strategies including recruitment and retention; training and staff development, as well as performance management strategies.

We have produced a list of some simple dos and don’ts for dealing with the performance management of staff:

DOs:

  • DO take a proactive approach and seek to resolve performance management issues at an early stage. One way for achieving this is conducting regular meetings with staff at which performance management issues (as well as other general matters) can be raised informally.
  • DO investigate why the employee’s performance is falling below the standard expected; for example, consider whether the employee is dealing with an increased workload or dealing with non-work related issues which are impacting on their performance. Always consider the employee’s explanation for performance issues and identify if other policies are triggered such as health management, stress management or bullying and harassment policies.
  • DO make sure an employee is aware of the standard expected of them and give them a reasonable opportunity to meet those standards. Any goals set to underpin performance expectations should be SMART and supported by the provision of training and/or managerial support where appropriate.
  • DO use probationary periods effectively and consider extending these periods if performance is an issue. Ensure that review meetings are scheduled at appropriate intervals throughout probationary periods.
  • DO review your procedures and processes for managing poor performance on a regular basis to ensure they are in accordance with current case law and legislation.

DON’Ts:

  • DON’T use the annual staff appraisal to address performance issues. Also ensure that, where performance is discussed as part of the staff member’s appraisal, it gives an accurate picture of their performance.
  • DON’T forget to keep records of all discussions and correspondence relating to an employee’s performance – this includes both the informal and formal elements of the performance management process.
  • DON’T confuse performance management policies and/or processes with other policies and/or processes such as sickness absence or disciplinary policies and processes. Check whether your organisation has a separate policy for performance management or take advice on which policy is adopted in these situations.
  • DON’T forget that the ACAS Code of Practice on Disciplinary and Grievance Procedures applies to dismissals for poor performance. Failures to comply with the Code can result in uplifts to compensation being made where there is a failure to follow a fair procedure and the employee successfully claims unfair dismissal.
  • Finally, DON’T be afraid of tackling poor performance but DO ensure your strategy for doing so is legally compliant.

Contact Details

If you would like more information on performance management, please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Football Hooliganism – Can You Dismiss?

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Media continue to focus on football hooliganism at Euro 2016 – what’s that got to do with your staff?

Most individuals will support their chosen nation from the comfort of their armchair over the coming weeks, but some will be lucky enough to have time off work to travel to France to indulge their passion for live football.  Whilst in the minority, there will be others whose only goal will be to indulge their passion for football hooliganism.

The French authorities have shown zero tolerance towards to any bad behaviour; the response has been and continues to be swift. Depending on the severity of the offence, guilty fans have been fined or given custodial sentences irrespective of nationality.

What is your response if one of your employees is one of these guilty fans who is incarcerated in France?  

Your immediate reaction may be to dismiss the employee, but is this fair if their imprisonment arose from actions that were completely separate to their employment?

The answer is that where there is misconduct outside of the workplace, it might be fair to dismiss where the misconduct affects (or could affect) the employee when they are doing their work.

Be aware there is no automatic right to dismiss

An employer cannot automatically assume that an employee can be dismissed because they have been convicted of a criminal offence, even where they are given a custodial sentence – see below.  An employer would need to consider:

  • what effect the conviction has on the employee’s suitability to do their job; and
  • their relationship with their employer, work colleagues and customers.

Cases involving violence, such as hooliganism, are more likely to affect the employment relationship either because of:

  • the nature of the work (if an employee’s job is working with children or vulnerable people any form of violence is unlikely to be tolerated); or
  • damage to the employer’s reputation (no employer is likely to want to be associated with football hooliganism and this could cause more damage to some organisations than others.  If there is significant negative publicity in the media, this is more likely to damage an organisation’s reputation).

An employer who dismisses in response to an employee’s criminal conviction without having considered the elements above, should expect swift receipt of an unfair dismissal claim (unless the employee has less than 2 years’ service, and so will not usually be able to bring such a claim).

What if the employee is in prison?

If an employee is in custody, the employer must also consider whether, in light of the needs of the organisation, the employee’s job can be held open.  The longer the period of imprisonment, the more likely it is to be a fair decision that the employee’s job cannot be held open.

In some cases where there is a particularly long duration of imprisonment, employment may end by reason of “frustration”, which mean the contract can no longer be performed.  In theory, no process needs to be followed if frustration applies.  Employers should always seek legal advice on whether this could apply rather than assuming that it will; frustration is a concept employment tribunals often struggle with as a reason for concluding the employment has ended.

Follow a reasonable process

When there is a criminal charge or conviction, a reasonable and fair process should be followed, as with any misconduct dismissal, which should consist of a reasonable investigation followed by a disciplinary hearing where the employee has a reasonable opportunity to respond to the allegations against them.  If, however, the employer cannot contact the employee or the employee will not co-operate, this does not mean the employer cannot continue with the process; an employer could offer to conduct the process in writing or based on the information they have.

Contact Details

For further advice on dismissing employees who have been charged or convicted with a criminal offence – please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Employment lawyer’s view on the Eva Carneiro settlement

Chelsea Employment Tribunal Settlement-01

The dust now appears to have settled on the bitter legal battle between ex-Chelsea first team Doctor, Eva Carneiro, Jose Mourinho the ex-Chelsea Manager and Chelsea Football Club. It is reported that Ms Carneiro rejected an offer of £1.2 million to settle her claim out of court.

The final sum accepted as part of the out of court settlement reached yesterday may continue to be the subject of speculation for some time to come, but the cloak of confidentiality around the terms of the agreement may mean that we never actually know the figure.

If we were gamblers it is probably a fair bet that it was not less than £1.2 million!
Doctor Carneiro brought two employment related claims, firstly a claim of constructive unfair dismissal and secondly a claim of sex discrimination.

She claimed that during her employment, treatment such as lack of action over sexually explicit comments made at away games, lack of changing facilities and the clubs failure to provide her with an official suit eroded the employment relationship to such an extent that she was forced to resign (“constructive dismissal”).

In addition, she is claiming that this treatment, coupled with the comments of Jose Mourinho on 8 August last year, when he is alleged to have said “filha da puta” (which roughly translates to “daughter of a whore”) in response to her running onto the pitch to help an injured player, amounts to sex discrimination.

Discrimination Cases in the UK

If the case went to full hearing in the Employment Tribunal, the court’s decision in the discrimination claim may have turned on whether it accepted the Chelsea camp’s defence to the claims, namely that Doctor Carneiro’s discrimination claim was nothing but a tactical move. The club claimed that Jose Mourinho did not use the words alleged, which have a discriminatory connotation, but instead actually merely exclaimed “filho da puta” (which roughly translates to “son of a b***h).

It is hard to see how this makes any difference from a moral point of view if indeed the comment was directed at Doctor Carneiro, but legally this would be a key factor as to whether the discrimination claim would have succeeded. A good old fashioned profanity in the eyes of the law is different to one found to be discriminatory in terms of the level of compensation that may be awarded.

If the case went to full hearing in the Employment Tribunal and Ms Carneiro was successful in her claim of constructive dismissal, the maximum compensatory award is £78,962. On the other hand, if an Employment Tribunal found sexual discrimination occurred, there is no limit on the amount of compensation that may be awarded, although there are accepted guidelines. In theory the value of Doctor Carneiro’s claim could have exceeded the £1.2 million settlement sum that was rejected by her earlier this week.

The level of compensation will take into account financial loss such as loss of earnings/future earnings, loss of pension and loss of benefits in kind, and is likely to include a sum for “injury to feelings” resulting from her treatment. In addition, it may cover a sum to compensate her for psychiatric injury.

Although this is a high profile case because of public interest in the personalities involved, there are lessons to be learned for all employers. Employers will no doubt question why, if the discriminatory act was alleged to have been committed by Jose Mourinho, the Chelsea Football club found itself as a defendant to the claim? For the purposes of discrimination legislation, an employer can be found responsible for anything done by an employee in the normal course of employment, unless it took reasonable steps to prevent it.

Employers should ensure that:

  • There are effective diversity policies in place that are well known to employees, regularly monitored and followed when an allegation is made;
  • There is an effective grievance policy in place;
  • Diversity awareness training is given to all employees irrespective of rank and visibly supported by the Executive leadership of the business;
  • There are effective contracts of employment in place with effective confidentiality obligations;

In the event that out of court settlements are achieved, ensure that the confidentiality obligations are water tight. Only time will tell if Chelsea Football Club and Jose Mourinho have achieved this!

For more information and guidance on an effective diversity framework for your business or any other employment law related matters contact us.

Apprentices – Four Reasons and a Risk

160607 Apprenticeship Training CareerSUMMARY: Four reasons to engage an apprentice and how to overcome the main risk

The government has been encouraging employers to engage apprentices and many employers are now seeing the benefits of them.

Four key benefits

1. National Insurance Contributions (“NICs”)

Since 6 April 2016, employers do not have to pay class 1 NICs for apprentices who are earning less than £827 a week (£43,000 a year) and are:

  1. under age 25; and
  2. following an approved UK government statutory apprenticeship framework.

Specific evidence is needed to show that these two requirements are satisfied. For example, an appropriate agreement.

 2. Apprentice rate minimum wage

If the apprentice is in the first year of their apprenticeship or is under the age of 19, employers can pay the apprenticeship rate, which is currently £3.30 per hour.

3. Gain skills in areas your organisation needs to grow

Organisations will be constantly considering and implementing new ways to grow.  Apprentices can be a cost effective way of supporting the larger strategic aim.

4. Funding

There could be funding available from the Skills Funding Agency to your business to support apprenticeship programmes.  Further information can be found at www.gov.uk/government/organisations/skills-funding-agency

Risks

The intention is for the apprenticeship relationship to be a positive and beneficial one for the organisation and the individual. However, not all working relationships will be harmonious.  If things do not work out, employers need to be able to address problems and ultimately dismiss individuals both fairly and lawfully if problems subsist; this is often where the risk lies.  Why?  Apprentices can have enhanced rights on dismissal, which limits the ability to terminate the agreement without potentially a significant financial liability.

Having the right agreement in place lowers the risk by ensuring an apprentice can be dismissed in the same way as an employee.

More Information

For more information on apprenticeships and how you can make them work for you, please visit: http://www.fgsolicitors.co.uk/news/apprenticeships-make-them-work-for-you/

Alternatively, if you would like more information on other contract essentials, please visit: http://www.fgsolicitors.co.uk/news/contract-essentials/

Contact Details

If you are considering recruiting an apprentice and want to benefit from the above advantages, without worrying about the risk, please contact us:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Working Out Working Time

working-timeSUMMARY: Are your working practices in line with the Working Time Regulations?

Any organisation will want to manage its hours to meet the needs of the business.  In doing so it will, however, always be important to ensure that the statutory requirements under the Working Time Regulations are satisfied.  Our quick guide below will help you to check if you are doing what you need to do.  It is important to remember these rights apply to both employees and workers.

Holiday

Workers are entitled to take 5.6 weeks (28 days) of paid holiday each year – this entitlement is calculated on a pro-rata basis for those working part-time.

For a more details on holiday entitlements please click here for our fact sheet on holiday entitlements.

Rest periods

Workers are usually allowed the following rest periods:

  • 11 hours’ uninterrupted rest per day;
  • 24 hours’ uninterrupted rest per week (or 48 hours’ uninterrupted rest per fortnight); and
  • an unpaid rest break of 20 minutes when working more than 6 hours per day.

In some cases it may be possible to require a worker to work during a rest period; compensatory rest will usually have to be given.

Average working time

Average working time should not exceed 48 hours per week, unless the worker has opted out.

Night workers

  • Night workers’ normal hours of work should not exceed 8 hours per day on average.
  • No night worker doing work involving special hazards or heavy physical or mental strain should work for more than 8 hours in any day.
  • All night workers should have the opportunity of a free health assessment when starting night work and at regular intervals when working nights.
  • If a doctor advises that the night work is causing health problems, transfer a night worker to day work where possible.

Young workers

Young workers (those under 18 but over compulsory school age) have additional protection.  They:

  • are entitled to a 30 minute unpaid rest break if they have worked for more than 4 hours 30 minutes,
  • must not work more than 8 hours per day,
  • must not work more than 40 hours per week; and
  • must not generally undertake night work.

Opt-outs/agreements

A worker can agree to work more than 48 hours each week by signing an opt-out agreement; young workers cannot opt out.

Other limits, for example relating to night working, rest breaks and rest periods can be modified by agreement.  Usually, this must be done with a collective agreement or workforce agreement.  If such modifications are required, we would recommend you take legal advice.  There are some strict rules which must be complied with to ensure the workers’ rights are validly modified.

Records

Record keeping is important as it will show workers’ rights are being complied with.  Equally, it is a strong indicator of good health and safety practices.

Special rules

Note that there are special rules in relation to certain groups of workers, such as the armed forces, which we have not covered here.

Contact Details

If you would like more information on working time obligations, including how to modify them – please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.