Monthly Archives: December 2015

On the 12th Day of Christmas…

12th Day of ChristmasOn the 12th day of Christmas my employee said to me….  “One of our suppliers has given me a crate of wine as a thank you.”

The employer might say, “well lucky you, I didn’t know we had Santa on our supplier list, merry Christmas!”  Or they might say, “make sure you share it around the office”, and the employee is left attempting to divide 12 bottles of wine between 14 people.

Either way, there are some concerns which an employer should be aware of when a member of staff receives a generous gift:

  • Could this be a bribe? 

The Bribery Act 2010 creates offences both of bribing and being bribed.  Accepting a generous gift may be considered to be accepting a bribe, depending upon the purpose of the “gift”.  For example, if the supplier gave the employee the crate of wine to guarantee their son being offered a job, this could amount to a bribe.

  • What does the employer’s hospitality and gifts and/or anti-bribery policy say? 

These policies would not usually ban employees from accepting gifts.  Guidance will however be given as to what procedure the employee should follow.  For example, a monetary limit on gifts which employees can accept without notifying the employer and what to do if employees receive gifts over this amount can be explained.

Having a procedure which employees are required to follow could help to identify potential bribes.

  • What does the employer’s whistleblowing policy say? 

If an employee considers that the gift is in fact a bribe, they may raise this with the employer by following the procedure set out in a whistleblowing policy.  Any such whistleblowing complaint should be fully investigated.  If an employee does raise such a complaint, they are likely to have additional protection if they suffer a detriment in the future (for example, dismissal) as a result of their whistleblowing.  An employee does not need to have two years’ service to bring a whistleblowing claim.

To manage any potential bribery risks, an employer should ensure they have in place an anti-bribery policy, whistleblowing policy and hospitality and gifts policy and that employees are aware of these policies and how to use them.

Merry Christmas!

Contact Details

For more details about the issues in this article please contact:

+44 (0) 808 172 93 22

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

On the 11th Day of Christmas…

11th Day of ChristmasOn the 11th day of Christmas my employee asked me ….  “Do I have to pay tax on the Christmas hamper you’ve given me?”

A seasonal gift is a great way to reward staff at this time of the year.  Does the employee’s question suggest they are being ungrateful?  No, it’s a sensible question.

Employee benefits, even if they do not take the form of money, are generally taxable unless there is a legal exemption or because the benefit is considered to be trivial. There are however currently no set monetary limits below which benefits are classed as trivial.

HMRC has however provided some guidance for employers who need to make that assessment:

  • Trivial benefits will often, but not always, be perishable and/or consumable.
  • A turkey, an ordinary bottle of wine or a box of chocolates would be trivial; a case of wine or a Christmas hamper would not.
  • Employers are required to make an objective judgment based on “common sense” taking into account the type and value of the benefit.  One bottle of Krug, given the price tag, is unlikely to be trivial; a budget hamper from the local cash and carry may well be viewed differently.

Given the imprecise and informal requirements, employers need to be careful that well intentioned gestures do not land their employees with a tax bill.  Legislation in the Finance Bill 2016 may provide more clarity in the future by introducing a statutory exemption from tax for qualifying trivial benefits in kind costing £50 or less.

Whether generosity comes in the guise of a staff party, presents or seasonal gifts, employers need to recognise the benefit of getting good advice to understand fully the potential tax liabilities.

Contact Details

For more details about the issues in this article please contact:

+44 (0) 808 172 93 22

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

On the 10th Day of Christmas…

10th Day of ChristmasOn the 10th day of Christmas my employee asked me…. “Why am I not getting a Christmas bonus this year when you’ve paid me one every other year?”

As a gesture of goodwill many employers pay their employees bonuses at Christmas; these payments often fall outside the scope of any formal bonus scheme.

An employer may however decide one year not to pay a Christmas bonus. In coming to that difficult decision, there are a number of factors which the employer needs to consider:

  • Whilst it is unlikely that there will be an express contractual right entitling the employee to a Christmas bonus; contracts of employment, any bonus scheme and other related policies should be reviewed to ensure no automatic entitlement has been created. If there has, the non-payment could be an unlawful deduction of wages.
  • Employers cannot usually unilaterally vary contractual rights without something more in the contract providing for this; employee consent may therefore be essential. Depending on the number of affected employees collective consultation may also need to be considered.
  • The absence of a written bonus agreement may not be fatal to the employee’s cause. If payments have been made over several years without fail, the employees may have acquired contractual rights by custom and practice.
  • Any communication to staff that Christmas bonus payments do not guarantee payments in future year; this may give the employer more flexibility.
  • The exclusion of only certain individuals and/or groups should be justified. Any discretion the employer has must not be exercised in a perverse or irrational way; and must be free from discrimination. Particular care should be taken if those to be excluded are on or have been on long term sick or maternity leave. Depending on the nature of the bonus agency workers could also have an entitlement.

Paying Christmas bonuses every year can create legal rights even if not intended. Given this, an employer who wants to be able to vary the bonus amount or withdraw the entitlement should ensure that this has been clearly communicated to employees to avoid costly disputes in future years.

Contact Details

For more details about the issues in this article please contact:

+44 (0) 808 172 93 22

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

On The 9th Day of Christmas…

9th Day of ChristmasOn the 9th day of Christmas my employee said to me…“My line manager has promised me a pay rise in the New Year”.

2016 looks like a prosperous year for the employee! If however the employer did not intend for the employee to have a pay rise, does it have to honour the manager’s promise?

Before breaking the bad news to the employee that their fortunes are not on the up, the employer needs to understand whether it can deny the employee the anticipated pay rise. In doing so, the following needs to be considered:

  • The contract of employment. Most contracts will set out when and how salary will be reviewed. Often contracts provide for an annual review and, more importantly, that reviews do not automatically guarantee a pay rise. However, pay rise promises made in the context of the salary review scheme are likely to be binding.
  • Historical pay rises. If the organisation’s usual practice is to award predetermined salary increases on an annual basis there may be an implied contractual right to an annual automatic pay rise; the manager’s comments may therefore be in line with this practice. Vigilance should however be exercised to minimise the risk of this type of right being created.
  • The detail of the conversation between the employee and the manager. Irrespective of the terms of the employment contract and/or implied rights to a pay rise, the manager’s comment may in any event have created a right to a pay rise. The main consideration will be whether the manager intended to make a contractually binding promise and the onus is on the employer to disprove that this was the intended consequence. The following factors will as, a minimum, need considering when determining if the employee has any entitlement:

1. When was the promise made? For example, pay rise suggestions at the end of the Christmas party are unlikely to create legal obligations whereas promises made around salary review time during 1:1 meetings may well do so. However, do bear in mind that a manager’s promise made at a social event, or on other occasions outside the parameters of the salary review scheme, can bind the employer in some instances.

2. Is the employee’s account accepted by the manager?

3. What did the manager offer? Is there certainty about the terms of the offer – for example, the amount of the increase and the date from which it becomes payable.

Ultimately, promises made by managers do have the potential to bind their employer and as such can have costly consequences and managers should be reminded of this.

Contact Details

For more details about the issues in this article please contact:

+44 (0) 808 172 93 22

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

On the 8th Day of Christmas…

8th Day of ChristmasOn the 8th day of Christmas my employee said to me…. “I didn’t enjoy the Christmas party as one of my colleagues kept harassing me.”

With the ever increasing demands of work the Christmas party is a great way to say thank you to staff. Most employees, when entering into the party spirit, will remember that there is a need to convey some semblance of good behaviour; sometimes, however a small number of staff are forgetful of this and lose all sense of propriety. In most instances their behaviour will be mildly amusing or annoying but in some cases it can become offensive and distressing.

Regardless of whether the party is away from the workplace and/or not in work time, employment law will still apply. This means employees who behave inappropriately towards their colleagues can be held accountable for their behaviour. Additionally, employers can be held responsible for the conduct of an employee towards a colleague where bullying, harassment and discrimination is involved.

It is therefore important to take seriously complaints of this type and not treat them any differently because the behaviour complained of occurred at a social event. Ignoring such a complaint could lead to a costly employment tribunal claim and reputational damage. Key considerations for an employer wishing to minimise these risks include:

  • Ensuring the complaint is dealt with quickly and impartially under the grievance procedure – the procedure should include the usual stages such as an investigation, meetings and an appeal.
  • Taking disciplinary action if the complaint is upheld.

However, proactive employers can also take preventative steps to minimise the risk of complaints in the first place, such steps can include:

  • Implementing and communicating an equality and harassment policy.
  • Providing equal opportunities training.
  • Dealing with complaints fairly and effectively.

Implementation of these simple steps should enable everyone to focus on the true purpose of the event and have fun at this time of year.

Contact Details

For more details about the issues in this article please contact:

+44 (0) 808 172 93 22

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

On the 7th Day of Christmas…

7th Day of ChristmasOn the 7th day of Christmas my employee said to me… “I’ve had too much to drink at the Christmas party.”

Many employers celebrate the festive season by providing alcohol for employees at the Christmas party. It is easy to forget that in this season of good cheer employment law still applies and if alcohol is to be served at a work event, employers should consider the following to manage any potential legal risks:

  • Having a policy in place setting out the standards of conduct expected at work social events and the consequences of breaching the policy. The policy should be brought to the attention of all employees prior to any Christmas party.
  • Ensuring that the event is as inclusive as possible to avoid complaints of discrimination. Non-alcoholic drinks should be available for employees who do not drink alcohol for religious or other reasons.
  • Keeping an eye out for younger members of staff as employers cannot serve alcohol to under 18s. This is becoming a more relevant consideration as the number of apprentices increase in the workplace.
  • Having the party at a licensed venue. Whilst this will not entirely absolve the employer from its duty of care to its staff, the venue owner will be responsible for serving the alcohol.
  • Ensuring that the health and safety obligations towards staff are satisfied. Employers need to consider how those who are worse for wear from excessive drinking will be managed and who will deal with this, particularly if there is a free bar. It may be preferable to limit the amount of alcohol that can be consumed and make non-alcoholic refreshments readily available.
  • Making clear what the arrangements are in relation to lunchtime events if alcohol is to be served where employees may be returning to work in the afternoon. Does this provide a health and safety risk for example in a factory setting, or a reputational risk in a customer facing environment?
  • Providing food and entertainment, which can be a distraction to those who may otherwise spend the evening propping up the bar.
  • Reviewing the arrangements for staff to get home safely. There should importantly be a zero tolerance message about drink driving.
  • Taking prompt action if there are conduct issues to be dealt with after the event. This applies equally if complaints are made by employees about harassment… more about this on the 8th Day of Christmas.

This guidance equally applies to other corporate social events at other times of the year.

Contact Details

For more details about the issues in this article please contact:

+44 (0) 808 172 93 22

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

On the 6th Day of Christmas…

6th Day of ChristmasOn the 6th day of Christmas my employee said to me ….. “I have to leave on time to get to my evening job; I’m trying to earn some extra money for Christmas.”

Whilst the worker’s keenness to fill up the Christmas stockings of their loved ones is admirable, the fact the worker has another job should trigger warning bells.

One such warning bell is the 48 hour working week limit imposed by the Working Time Regulations 1998 (“WTRs”) – employers are responsible for ensuring workers do not work more than an average 48 hours per week, unless they have signed an agreement opting-out of this limit. In calculating the 48 hour week, any time spent working for other employers must be taken into account.

Therefore, employers presented with the information about another job, should consider asking the following questions:

  • Could the worker be working more than 48 hours per week?

First review the contract of employment to identify the contracted hours; the overtime records should also be reviewed.

The worker should also be asked to provide details of all other hours worked for other employers. The total hours worked by the worker can be identified using this information.

  • Has the worker signed an opt-out?

If it appears that the worker will work more than 48 hours per week it is necessary to have an opt-out in place. Records should be kept of opt-out agreements that are in place. It should therefore be easy to clarify whether the worker in question has signed an opt-out.

  • What if there needs to be an opt-out?

If the worker is likely to work more than 48 hours per week they should be given the choice of either:

    • Entering into an opt-out agreement. The agreement must be in writing and entered into voluntarily.  An opted out worker can cancel the opt-out on seven days’ notice unless the agreement expressly provides for a longer notice period, which cannot be longer than three months.  The worker cannot be forced to sign an opt-out and it is unlawful to dismiss or victimise a worker for refusing to sign an opt-out.
    • Reducing their combined working time to less than 48 hours per week.

It is crucial for employers to get this right otherwise they are committing an offence under the WTRs if they fail to take reasonable steps to ensure their workers do not work more than 48 hours a week unless they have opted-out. An effective way of discharging this obligation is the inclusion of secondary employment clauses in contracts of employment and/or policies which should be clearly communicated, monitored and enforced.

In addition to the 48 hour week obligations, employers must not forget that worker are still entitled to daily, and weekly rest breaks as well as annual leave.

Contact Details

For more details about the issues in this article please contact:

+44 (0) 808 172 93 22

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

On the 5th Day of Christmas…

5th Day of ChristmasOn the 5th day of Christmas my employee said to me… “My childcare arrangements for the Christmas holiday period have just fallen through.”

An acceptable solution to help the employee, particularly if time needs to be taken off at short notice, may be readily identifiable.  If this is not possible, the employee may have to rely on the statutory dependent care leave regime to take time off.  The right would be triggered where the breakdown in child care arrangements was unforeseen and is an emergency.

Unless the contract of employment provides otherwise, the right to such leave is unpaid.

The employee is unlikely to be able to use dependent care leave to cover the entire school holiday period.  The right is to a reasonable amount of time off – normally a day or two is anticipated to allow the employee to sort out the emergency and make alternative arrangements.  Each case is likely to be different and needs to be considered on its own set of facts. In considering what is reasonable and necessary the following is relevant:

  • the nature of the emergency;
  • the relationship between the dependent and the employee;
  • the extent to which the employee can call upon someone else for help or make alternative arrangements; and
  • the length of time the employee had to explore alternative arrangements –  the longer the time the employee had to explore alternative arrangements, the less likely it would be necessary to have time off.

The operational needs of the business and any disruption caused are irrelevant considerations for an employer when determining if leave should be permitted.

To request this type of leave the employee is required to:

  • tell the employer as soon as possible the reason for the absence;
  • indicate how long they expect to be absent; and
  • provide sufficient information to establish the right to take dependent care leave.

To enable employees to understand the parameters of this statutory right, and to ensure that any request for this type of leave is dealt with fairly and consistently, employers are advised to have a clearly communicated policy. As a minimum this policy should address the following:

  • when an employee may take unpaid time off to care for their dependants, who may not always be children;
  • the process for requesting the leave;
  • details of the evidence required to support the request;
  • any sanctions for abusing the policy; and
  • details of the other rights available including  unpaid parental leave, annual leave or flexible working arrangements.

Contact Details

For more details about the issues in this article please contact:

+44 (0) 808 172 93 22

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

On the 4th Day of Christmas…

4th Day of ChristmasOn the 4th day of Christmas my employee said to me… “I can’t get to work because of the snow.”

Although unseasonably mild now, chances are some parts of the country will experience travel disruption due to snow over the coming months and operational efficiency may be significantly affected if staff cannot get to work.

Proactive employers should develop a strategy for responding to this possibility which should include the following key considerations:

  • Health and safety

Health and safety may be called into question where employees indicate that it is too dangerous to travel but are required to continue with their journey and, as such, should not be ignored. Employers need to be aware that employees are protected from detrimental treatment and dismissal for raising concerns on health and safety grounds; raising such concerns could also trigger protection under the whistleblowing legislation.

  • Pay

Usually if an employee is unable to get to work there is no automatic right to be paid. However, before deciding this, existing contractual, collective or custom and practice arrangements already in place need to be considered to establish what rights employees have in relation to pay in such circumstances. Equally, if employees have to be sent home as it is not practicable or safe for the business to remain open, those employees with contractually guaranteed hours or salary will still have the right to be paid unless the contract provides otherwise.

Employers should always check for appropriate clauses in contracts before deducting pay for non-attendance.

  • Flexibility

Taking a flexible approach to working hours and the place of work may be a possible solution for some employers, examples of possible approaches include:

  • homeworking;
  • allowing employees to work at another site, which is more easily accessible;
  • allowing staff to make up the missed hours;
  • treating the time as annual leave; or
  • offering time-limited paid leave.

This approach will however need careful planning and communication to avoid future pitfalls.

Whatever your business strategy, planning ahead will be key to minimising business disruption and at this stage it may be useful to involve employees in the process as they too could provide valid solutions to the problem.

Contact Details

For more details about the issues in this article please contact:

+44 (0) 808 172 93 22

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

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