Category Archives: Contract of employment

Romance and the workplace: should employers regulate?

Romance and the workplace: should employers regulate?

Recent studies indicate that one in five people met their significant other through work. This outranks online dating, introductions through mutual friends and meeting at a bar or club.
Therefore, when it comes to an employee’s right to a private life and the employer’s right to protect its business interests, it is crucial to adopt a balanced framework and accompanying policies. Such policies should express clearly that a company has no wish to interfere in the private lives of their employees, however it is necessary to ensure that all employees, regardless of their seniority or job title, act in an appropriate and professional manner at all times.
The impact of romantic relationships in the workplace varies, and although it may be argued in some cases that the success of a company can be measured by the success of these relationships. It is important to acknowledge the risks and dangers office relationships can have to the culture, performance and integrity of the business.
Employers face having to deal with an increase in personal relationships at work. Whether its personal spats invading a professional environment, pillow talk risking the confidential integrity of the business or the effects of divorce between staff members, it is pertinent for employers to implement relevant policies to protect business interests and effectively run their organisation.
Encouraging honest communication between an employee and employer is vital. Employers should establish with staff members their expectations that employees will keep their private and professional life separate to avoid the risk of relationships crossing over departments or individuals entering into relationships for their own professional gain, the company must consider the necessary safeguarding measures.
The initial precautionary step an employer can take, is to review the current staff handbook for any existing regulations concerning workplace relationships. In order to effectively manage any potential negative issues, employers may want to implement guidelines that employees must adhere to. For example, a company can require employees to notify and disclose an ongoing close relationship for which a relevant impact assessment can be carried out. This way the business is aware of the type of relationships that are developing, can manage the potential problems which may occur and identify what steps need to be taken to protect the business. In addition, an employer can apply policies which prohibit any romantic associations between staff.
The drafting of such policies should be tailored to the company’s needs and interests, with emphasis on the core fundamentals an employer expects of its staff. It should inform the individual that their conduct is to act appropriately and in the best interests of the company, without any impairment of their judgement or undue influence on their behaviour from their significant other. To maintain an honest and transparent relationship with the company to avoid any potential conflicts of interest. To act with integrity, therefore avoiding any preferential treatment between senior level staff and their juniors. Finally, to retain a professional manner in all dealings with and on behalf of the company, including their etiquette when communicating both internally and externally with their partner.
FG Solicitors are experts in all areas of Employment Law and HR and we can guide your business through any difficulties you may face like this one. Feel free to call us on 0808 172 9322 for a no obligation discussion.

Gather, Distribute, Process, Retain No Info!

3MonkeysIn terms of legal opinion on which others may place reliance it is often advisable to do away with the needle of innuendo and pick up the club of statement. In line with that adopted position, you are invited to consider the implications of the impending arrival of the General Data Protection Regulations (“GDPR”).

As the regulations have their origins in EU law, an immediate question is will they survive Brexit? The short answer is that even if the regulations do not survive intact post Brexit, the Government has confirmed that the UK will implement the GDPR when it comes into effect on 25 May 2018 because the UK will still be a member of the EU at that time.

The GDPR heralds the biggest shake up in privacy laws in 20 years and will have a seismic impact on the human resource data processing undertaken by employers and employment related entities.

There will be some fundamental changes to the current law and it is suggested that organisations need to be aware of those changes and should be actively developing a strategy for compliance ahead of the changes coming into effect in May 2018. This is especially because the cost for GDPR non-compliance has risen dramatically when compared to non-compliance with current data protection legislation, as the new fines will be based on a percentage of total annual turnover of a business in the previous financial year. It will become easier for individuals to claim compensation and group actions will be more likely.

THE KEY CHANGES…

As a minimum, the key changes for staff engagement purposes include:

Consent: No longer will it be sufficient to include in Contracts of Employment a blanket clause stating an employee is deemed to give consent to the lawful processing of their data. Instead, organisations will be obliged to demonstrate that consent has been explicitly given for each processing purpose of the data in question. Furthermore, the organisation will need to demonstrate the consent was freely given (potentially difficult in the master/servant relationship which is employment) and that the consent is “informed.” Also, the organisation will need to implement a mechanism for the withdrawal of such consent at any time.

Subject Access Requests: The information to which data subjects will be entitled under the GDPR is more extensive. The time for providing that information is reduced from 40 days to one month and there will be no longer be a right for organisations to charge a fee to provide this data.

Right to Erasure: Also known as “the right to be forgotten,” this is a new right where individuals can request that their personal data is permanently deleted in certain circumstances. This will cause organisations particular difficulties where personal files are held both centrally and locally (for example, by a line manager).

Right to Restriction: There are instances when organisations are obliged to restrict processing; this includes employee challenges to the accuracy of personal data. This could result in certain management processes being stalled.

Breach Notifications: Unless the breach is unlikely to result in a risk to the individuals concerned, organisations’ data processers will be obliged to notify the ICO of all data breaches without undue delay and, where feasible, within 72 hours of the breach.

DO WE NEED TO DO ANYTHING YET??

YES! 

Organisations could be forgiven for thinking that, as the GDPR implementation date (25 May 2018) is still the best part of 12 months away, and with Brexit looming, the matter can be left for now. But compliance with this legislation will require a good deal of planning and remapping of existing processes. The immediate steps for any organisation include:

  1. A comprehensive audit of existing systems and processes;
  2. Deciding whether additional personnel should be recruited to take on specific roles and responsibilities;
  3. Designing systems that will assist with GDPR compliance (including breach notification compliance);
  4. Identifying appropriate training for staff – for example, general awareness training for staff with more specific training for those with greater compliance responsibilities (including the IT Department and HR managers); and
  5. Reviewing and upgrading current Contracts of Employment and policies to manage risk.

We can undertake your audit and assist you with preparation for GDPR implementation. For a non-obligation consultation, please call a member of our team on 01604 871143 or email us on info@fgsolicitors.co.uk

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.

Staff Handbook: Handy or a Hindrance?

staff-handbookSUMMARY: Employer’s bid to change its staff handbook is rejected by the Court of Appeal… Read on to stop this happening in your organisation.

Staff Handbooks are a great way of telling staff what you expect from them at work and how they will be treated in return. A constantly evolving handbook with inherent flexibility to adapt to organisational change can be a very effective people management tool.

To ensure there are no limitations on an employer’s ability to make changes, the handbook should be a guidance document, which does not form part of the contract of employment.

In a recent dispute about a change to an absence management process the Court of Appeal confirmed that the employer could not unilaterally implement a change to that process even though it was contained in the handbook. The relevant process was contained in the part of the handbook which was stated to have contractual effect and therefore the employees’ consent was necessary.

The following are some simple do’s and don’ts to avoid this problem happening:

DO check whether your existing staff handbook is contractual or non-contractual.  Sometimes a handbook will state that part of it is contractual and part of it is non-contractual.  It is easier to amend a handbook (or parts of it) that are non-contractual than those that are contractual. If the contractual status of the handbook is unclear, consider seeking legal advice.

DON’T amend your handbook if it is (or parts of it are) contractual without consulting with staff to reach agreement. There may be an obligation to enter into a more formal consultation process if more than 20 employees are affected and/or there is a recognised trade union. If you are unsure about your consultation obligations, consider seeking legal advice.

DO consider putting in place a completely non-contractual handbook if you do not already have one.  This would avoid the worry of having to consult with staff every time a change is made; notification to staff would suffice.  Staff would still be bound by the policies in a non-contractual handbook because they have a duty to obey lawful orders.

DON’T forget to review contracts of employment at the same time as a contractual staff handbook, especially if you are looking to remove the contractual parts of the handbook; if some elements need to remain contractual relocate them to the contract.

Get your staff handbook right and it will definitely be handy rather than a hindrance.

Case

Department for Transport v Sparks and others [2016] EWCA Civ 360

Contact Details

For more details about amending handbooks or contracts of employment or consulting with your workforce 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.

Does “Discretionary” Commission Mean Employers Can Pay Whatever They Want?

CommissionSUMMARY: Many employers give their employees discretionary bonuses or commission. However, “discretionary” does not mean that employers can pay whatever amount they choose.

In a recent case, the Court of Appeal agreed with the High Court that the amount of “discretionary” commission paid to an employee should be increased.

This case is a useful reminder that an employer should be able to show that the way in which it has exercised its discretion is not irrational or perverse.

Here are our top tips for employers who want to avoid challenges by employees about how they have exercised their discretion:

  1. Have in place an appropriately worded clause in the contract of employment setting out that a bonus/commission is discretionary.
  1. Consider the reason(s) for the amount of bonus/commission you are giving to an employee.
  1. Record your reason(s) in writing at the date the bonus/commission decision is made so that you have evidence ready in the event of a challenge.  Your record should show why and how you have reached a decision.  Flipping a coin is not a rational decision-making process!
  1. If you want a bonus/commission scheme in place, ensure that this is suitably worded to give you flexibility.  For example, the flexibility to vary or withdraw a scheme can be a useful tool.
  1. If you tell employees there are factors that will be taken into account in decision making (for example, in a commission scheme), ensure these factors are taken into account.  If the factors change, tell employees in advance of them carrying out the work.
  1. Treat staff consistently.  If an employee feels that they have been awarded a lower commission/bonus than others, they may claim this is on the basis of a protected characteristic (such as age, sex or disability).  This could leave an employer facing a discrimination, as well as a breach of contract, claim.

If you follow these tips, you should be able to motivate your workforce with the possibility of a bonus/commission payment, but avoid claims from employees when you want or need to pay less.

Case

Hills v Niksum Inc [2016] EWCA Civ 115

Contact Details

For more details about how to set up and implement bonus or commission schemes 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.

New Protection for Zero Hours

Contract being tornZero Hours Contract

Zero hours contracts are contracts between an employer and a worker and/or an employee and provide that the employer is not obliged to provide them with any minimum working hours, and the worker and/or employee is not obliged to accept any of the hours offered.

A ban on exclusivity clauses since May 2015

Zero hours contracts have often historically included exclusivity clauses which prevent workers and employees from working for another employer. Whilst it remains permissible for a business to use zero hours contracts, exclusivity clauses in these types of contract have been banned since 26 May 2015.

New protection for workers as from 11 January 2016 

As of today, real protection has been introduced for those engaged on zero hours contracts which include exclusivity clauses:

  • zero hours employees have the right not to be unfairly dismissed if the reason, or principal reason for their dismissal, is that they have failed to comply with an exclusivity clause. Employees do not need two years’ service to be able to bring their claim; and
  • zero hours employees and workers have the right not to be subjected to a detriment for failing to comply with an exclusivity clause.  A detriment could be the decision not to offer further work.

Where these rights have been breached, employees and workers may issue a claim in the tribunal and seek a declaration and/or compensation.

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:

fgmedia@fgsolicitors.co.uk

+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:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

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

On The 3rd Day of Christmas…

3rd Day of ChristmasOn the 3rd day of Christmas, my employee said to me… “I need to leave early tonight to go and watch my child’s nativity play.”

The following factors should be considered by an employer before deciding whether to refuse a request to allow an employee to leave work early to witness their child’s BAFTA performance:

  • The employee has no automatic right to leave early in these circumstances unless the contract of employment provides for this; and special care and attention should be given to those contracts which include flexi-time or time off in lieu arrangements. Otherwise, the employee is likely to have to rely on the employer’s goodwill, a special leave policy or take annual leave, with the latter being the most likely option.
  • Employees have a statutory right to annual leave and may ask to take the leave as holiday.
  • If an employer operates a “leave policy” (in the contract of employment or staff handbook) requests not made in accordance with the policy can be more readily rejected. For last minute leave requests, the most obvious reason for rejecting it is that the employee has given insufficient notice.
  • If the request is rejected, it is prudent for a number of reasons and not least from a staff morale perspective, to provide the employee with an explanation.
  • Employees may take sick leave if the request is refused. Therefore an essential tool in managing this scenario is a publicised absence management procedure, which includes reporting requirements and back to work interviews.

The employer may however exercise their discretion and agree to the request. In this instance an employer should be mindful that all such similar requests should be dealt with fairly, consistently and in a non-discriminatory way. It is also advisable that, by exercising a discretion, it is made clear to the employee that it is not intended to create any future rights. The employee should also be notified and agreement obtained if one of the following is proposed:

  1. the leave is to be unpaid;
  2. the annual leave entitlement is to be adjusted to reflect the time taken; or
  3. the time will need to be made up.

Contact Details

For more details about the issues in this article 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.

Can I bring a friend?

16229690_m - CopySUMMARY: Employers are increasingly expected to be flexible when allowing employees/workers to be accompanied.

The right to be accompanied at a disciplinary hearing

Given the recent decision of the High Court (Stevens v University of Birmingham) which indicated that an employee should have been permitted to have a professional representative present at an investigation hearing and changes to the ACAS Code of Practice on Disciplinary and Grievance Procedures and the non-statutory guidance, employers are often left bewildered as to who the employee/worker should be permitted to bring with them to a disciplinary hearing.

The statutory right to be accompanied applies where the employee/worker is invited to attend a disciplinary hearing.  Disciplinary hearings for the purpose of this right are those hearings that could result in:

  • a formal warning being issued;
  • the taking of some other disciplinary action.  For example, suspension without pay, demotion or dismissal; or
  • the confirmation of a warning or some other disciplinary action.  For example, an appeal hearing.

The right applies to capability as well as misconduct hearings.  It does not apply to investigatory meetings.

Choice of companion

The following is a summary of who can be a companion:

1. An individual employed by the trade union of which they are an official

The employee/worker does not have to be a member of the trade union to which the official belongs.

2. Any other official of a trade union

See immediately above.  This person has to be certified by the trade union as having the experience/training to act as the companion.

3. A work colleague

  • The work colleague will have the right to paid time off during working hours.
  • The work colleague must not be subject to any detriment or dismissed because they have acted as a companion.
  • The choice of the work colleague does not have to reasonable – the employee/worker can choose whoever they wish.  It used to be thought that if the work colleague was at a remote geographical location, an employer could veto the employee’s/worker’s choice, but this is no longer the case.

4. A person to support the employee in difficult circumstances

These difficult circumstances are limited and are likely to include:

  • a companion who can translate where English is not the employee’s/worker’s first language; and
  • a companion to assist where the employee/worker has a disability or has mental health issues.

5. A lawyer

There is no general right to bring a lawyer to a disciplinary hearing.  There may however be:

  • a right under the contract of employment; or
  • a right as a result of the Human Rights Act 1998 where the outcome of the disciplinary proceedings would have a “substantial influence” on a decision of a regulatory body (or similar) that could bar someone from their profession.  For example, the medical, legal or accountancy profession.

6. Any person specifically identified in a policy/procedure/contract of employment

Employers should always check to establish whether their own policies/procedures/contracts of employment provide for different types of companion.  For example: a family member, a legal representative or a friend.

A flexible approach

Employers should also note that an employee has a statutory right to ask for a meeting to be rescheduled if necessary in order for his or her chosen companion to attend as long as the alternative date suggested is within five working days of that proposed by the employer.

Employers are increasingly being called upon to permit employees and workers to bring along individuals who do not fall within the traditional companion category.  Whilst employers can reject an employee’s/worker’s choice of companion in some cases, employers should be aware that tribunals appear to be expecting employers to take an increasingly flexible approach to the persons permitted as companions.

Employers should take advice if they are unsure as to whether they should permit the person an employee/worker has asked to be accompanied by and should ensure their own policies are clear on this point.

Cases

Stevens v University of Birmingham [2015] EWHC 2300

Contact details

For more details about permitted companions for employees/workers at meetings please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

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