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  • What You Need to Know About the GDPR Jan 17, 2018

    On 25 May 2018 the General Data Protection Regulation (GDPR) comes into force. It is designed to give tighter security to personal information. Data controllers and data processers are responsible for ensuring personal data is held securely. For organisations that breach the GDPR the fines are potentially huge – potentially running into millions of pounds – a fine of up to £10 million or 2% of turnover. The data controller carries the heaviest burden whilst data processors need to ensure that data is held confidentially and compliantly and security problems are addressed. The government has announced an intention to actively police this law.

    There are six processing principles – lawfulness, purpose limitation, data minimisation, accuracy, storage limitation, integrity/confidentiality.

    So what an organisation do to prepare for this onerous responsibility?

    The first step would be to undertake a data protection audit. Depending on the size of the organisation it might be a good idea to create a project team from across different departments. For smaller organisations a team of at least two is ideal. The audit will then need to identify the data that is collected along with the purpose, identify the legal basis you are seeking to rely on, review data collection, storage, retrieval and record keeping, review service providers and data processors (including third party outsourced partners) and analyse risk from any compliance gaps. The organisation should then update or implement relevant policies such as data protection, recruitment, IT, disciplinary, whistleblowing, data subject access requests and privacy notices.

    As many private sector organisations may not currently have a privacy notice in place it is essential to develop one that give information to employees and customers on what and how their data will be processed. The privacy notice needs to also detail their rights and obligations clearly identify the Data Controller (usually the CEO) and what to do in the event of discovering a data protection breach. A detailed privacy notice could be issued along with an employment contract or become part of a staff handbook for employees.

    Given the seriousness of this forthcoming law and the implications for non-compliance, it might be a good idea to implement training in the GDPR across the workforce.
  • Employers Can Read Employees' Private Emails Jan 14, 2016

    In a landmark case the ECHR (European Court of Human Rights) have deemed that employers can read employees’ private messages whilst they are work. This has implications for UK employees who use Facebook, Twitter and other social media platforms to communicate with family and friends during their working day and highlights the increasing blur between workplace privacy as working hours become longer.

    The case was taken by a Romanian engineer who messaged his partner on a private messaging platform. His employment was terminated by his employer who had a policy in place that banned staff from its employees making use of company resources for personal use. The employer had accessed his private messages on Yahoo as he also used this medium for work-related messages.

    The ECHR decision goes to the heart of the employment contract with the implied term that in exchange for wages an employee commits the whole of their time to the employment for which they are being paid.

    Some legal experts have warned that even after work hours have ended an employee should not use private messaging platforms for personal use with company smartphones, tablets or laptops.

    Many employees may now assume that their employer could monitor their online activities whilst in work and should seriously consider what they do in this regard, however, it is important to note that in order to undertake monitoring of online activities, a policy should be in place that clearly states that this may or will take place. If there is no policy in an employee handbook for example, employers should now consider the need to establish this. An existing policy should be reviewed in accordance with this development.

    A statement referring to online activity monitoring should ideally be included in an IT and/or internet use policy. An employment practices code linked to the Data Protection Act 1998 published by the Information Commission gives useful guidance on this matter. In the light of this ruling, the Information Commission may need to review its own guidance now.

    In a policy the employer should be clear about the purpose of monitoring including the nature, extent and who will be doing the monitoring. With larger companies it would expected that it would be done by the IT department but small businesses would need to identify who would undertake the activiiy. The benefits of online monitoring should be included in the policy and ideally an impact assessment done to establish the risks. Monitoring should not be excessive and should only be done to meet a clearly defined purpose otherwise employees will develop mistrust of their employers intentions which is not conducive to a harmonious working environment.

    Individuals who are undertaking the monitoring should be provided with training that includes maintaining privacy and confidentiality if accessing personal information. These individuals should have clear written guidelines in this regard.

    If monitoring is to enforce company rules a link to the disciplinary policy should be stated with the procedure clearly explained along with sanctions for non-compliance.

    Employees should be made clearly aware that the policy is being implemented or exists and has been reviewed. New employees should be informed as part of an induction procedure. Ideally an employer should get explicit written consent to monitoring in writing by implementing a consent form.
  • Small Business Awareness of Auto Enrolment Aug 20, 2015

    The Pension Regulator has recently published its findings in relation to small business awareness of[​IMG] pension auto enrolment. Worryingly the research shows that only 29% of small businesses with a staging date in 2016 know when that is.

    Awareness of the auto enrolment process is highest amongst small employers compared to micro employers. The Pension Regulator is currently trying to raise awareness through TV advertising campaigns, radio and digital advertising and via social media, All employers receive a letter from the Pension Regulator twelve months before their staging date. This should be a clear prompt for that business to start preparing for the statutory process or face a large fine for non compliance. The first task should be to decide what pension scheme to choose and this will take quite a lot of time to do research. For those companies that do not wish to take up a private pension scheme the government has set up NEST which offers low cost compliance. Preparation for auto enrolment is the key to success and failing to prepare will lead to failure and high costs.

    Other sources of how awareness is being raised are through professional advisors such as accountants, book keepers, pension providers, business groups and, of course, savvy HR consultants. The latter are often best placed to help small businesses with the admin burden of auto enrolment.

    Information on how to comply with pension auto enrolment is readily available on the Pension Regulator website.

    Unfortunately whilst many businesses do eventually get to grips with the process it appears that many forget to complete the declaration of compliance. This has to be submitted to the Pension Regulator within five months of the staging date.

    Small employers on the whole believe that auto enrolment is a good thing compared to many micro employers. According to the research 41% of micro employers fear the cost of contributions, however, they need to ensure they do not coerce employees into opting out as such conduct can incur a hefty fine from the Pension Regulator. 14% of them believe they do not have to do anything to comply with this process – they will obviously have to think again if they have employees.

    If a micro business does not have any employees and no one in the business has an employment contract, they may not need to comply. However, they should take advice to ensure that this is the case.

    Any business that is of the opinion that compliance with auto enrolment is not needed should write to the Pension Regulator giving the reasons why and await a written response that will either confirm their assumptions or not.
  • Employers Failing To Understand Auto Enrolment Duties May 25, 2015

    The Pension Regulator has recently published it latest quarterly bulletin which shows that employers are failing to understand their automatic enrolment duties.[​IMG]

    It seems that the Pension Regulator has found that many employers assume their duties only relate to staff who are eligible to automatically enrol according to age and salary criteria. This is incorrect as staff who have the right to join or opt in must be included in the automatic enrolment process.

    The Pension Regulator found one employer who was using a master trust and had misunderstood the role of the scheme and had assumed that the scheme would be responsible for calculating contributions and making the correct staff deductions. This is a fundamental error and one that leads to a hefty fine for failing to comply correctly to automatic enrolment regulations and attracts the highest number of fines.

    The Pension Regulator lists the various offences that employers can be fined for:

    Information Notice – The power to demand information and documents under section 72 of the Pensions Act 2004.

    Inspection – The power to inspect premises under section 74 of the Pensions Act 2004

    Warrant – The power to search premises and take possession of content under section 78 of the Pensions Act 2004

    Compliance Notice – A Compliance Notice under section 35 of the Pensions Act 2008 The power to remedy a contravention of one or more automatic enrolment employer duty provisions

    Unpaid Contributions Notice – An Unpaid Contributions Notice under section 37 of the Pensions Act 2008 to remedy a late or non-payment due to a qualifying pension scheme

    Fixed Penalty Notice – A Fixed Penalty Notice under section 40 of the Pensions Act 2008 of £400 for failure to comply with a statutory notice or some specific employer duties

    Escalating Penalty Notice -An escalating penalty under section 41 of the Pensions Act 2008 of between £50 and £10,000 per day (depending on size) for failure to comply with a statutory notice

    Employers who don’t understand what their compliance duties fully entail should take advice from an advisor who fully understand what needs to be done. Pension Regulator research has shown that accountants and book keepers have the lowest level of understanding out of all the available intermediaries.

    When seeking advice and support, an employer should understand exactly what they are getting for their money whether it is just advice or a full automatic enrolment service. Both parties should be clear on the responsibilities for each task in the automatic enrolment process.
  • Road Safety Week - Employer Tips for Driving at Work Nov 19, 2014

    Driving at work is one of the most dangerous activities as a quarter of all vehicle mileage travelled annually on UK roads is for work purposes and a third of all crashes involve a vehicle that is being used for work. Every week around 200 road deaths and serious injuries involve drivers who are at work. Corporate manslaughter law that was implemented in 2008, dictates that an employer can be held responsible for the actions of their employees whilst driving at work. A company can be prosecuted and face huge fines if they have done nothing to reduce liabilities, therefore, there are certain steps that need to be taken and possible financial costs. This week (17-11 November) is Road Safety Weekhttp://www.roadsafetyweek.org.uk/ so in this blog we provide some employer tips for driving at work and managing the HR issues.

    Driving at Work Policy

    An employer should have a driving at work policy and procedure in place that is well communicated to staff. This should entail the employer explaining all the details either on a 1:1 or group basis and ideally having the employees sign a paper document to show agreement which is then held on file. The policy should contain clauses on licence checking, safety, breakdowns, use of mobile phones, driver breaks, training, maintenance, accidents, fines and disqualifications, smoking and mobile phones. A list of authorised drivers should also be held to include company vehicle drivers and employees who drive their own car on company business.

    Check licences

    An employer should check the validity of licences on a regular basis by taking a photocopy to be held on the personnel file. How regular that can be is up to the employer’s judgement but ideally at least once a year. If an employee provides a copy of a clean licence, an annual check should suffice. However, if the licence shows quite a few points then an employer may need to check more regularly. It is very easy to rack up additional points particularly with driver who has a careless history. If the employee is disqualified from driving they will not be insured. If they have an accident whilst driving a company vehicle the company is liable and not the insurance company. If a disqualified employee drives their own vehicle on company business and has an accident if a claim is progressed in the civil courts the employer may be pursued. The employer may, therefore, incur financial costs.

    It may be quite onerous to check the validity of licences with regular photocoping, however, it is essential for an employer to do so to reduce liability. An alternative to checking and photocopying licences is to use form D888/1 to gain written permission from the employee to contact the DVLA about licence validity and driver entitlement. The form is sent off with a £5 fee - https://www.gov.uk/government/publications/d8881-request-by-a-company-about-driver-entitlement

    It is important for employers to take ownership of this process. An employer can not guarantee that an employee will tell them if they have been fined, endorsed or disqualified particularly if their job might be on the line. Whilst the matter may be dealt with using the disciplinary procedure should untoward behaviour come to light, the repercussions for the company are much wider.

    For employees that drive their own car on company business copies of MOT, tax and insurance documentation should be photocopies annually and held on file.

    Fit and Safe to Drive

    Employees should be requested to inform their line manager if they are fined, endorsed or disqualified. Failure to do so should result in use of the disciplinary procedure. They should be fit to drive, wearing prescribed glasses or contact lenses as appropriate. Employers can offer to pay for employees eye tests and contribute to glasses if they are essential drivers. Eye tests can be organised on an annual basis. Employees should take care when taking any prescribed drugs that may affect their ability to drive and should inform their line manager of any medication that may cause them to be at risk.

    Company vehicles should be regularly maintained with responsibilities assigned to key members of staff. This should include servicing, MOTs, documentation updating and essential checks for drivers before starting a journey. Employees should be well aware of how to deal with a breakdown and who to contact within the company should this happen.

    If an employee is involved in an accident in a company vehicle many employers require the employee to pay the insurance excess. This can be made a contractual obligation. Employees should take responsibility for any fines, traffic offences or other breaches of the law committed when driving.

    Driver Training

    To reduce liability an employer can provide safety and efficiency training. The Energy Trust holds a list of driver trainers who can deliver often 100% funded sessions on site. If done on an annual basis employees are educated in how to drive safely.

    Tool box talks are also another way to educate drivers with short timely sessions that focus the mind on awareness related to speed, braking and motorway safety for example.

    Providing training reflects well on a company’s reputation and keeps costs down.
  • Overtime To Count In Holiday Pay Nov 5, 2014

    Workers have won a groundbreaking case at the Employment Appeal Tribunal to include overtime in holiday pay.

    This means all people working voluntary overtime could claim for additional holiday pay. Currently, only basic pay counts when calculating holiday pay.

    The details of the ruling, particularly on whether claims can be backdated, have yet to be released.

    The ruling could be appealed to the Court of Appeal, meaning a final decision may be years away.

    The ruling has widespread implications for all companies paying overtime to their staff.

    The government estimates that one-sixth of the 30.8 million people in work get paid overtime. This means around five million workers could be entitled to more holiday pay.

    The coalition and business groups had argued strongly that overtime should not be included in holiday pay calculations.

    If claims can be backdated, businesses stand to lose billions of pounds, some estimates suggest.

    “Up until now some workers who are required to do overtime have been penalised for taking the time off they are entitled to,” said Howard Beckett of Unite.

    “This ruling not only secures justice for our members who were short changed, but means employers have got to get their house in order.”
  • Three Ways to Deal With Sickness Absence Oct 31, 2014

    As an HR consultant one of the hot topics that my clients speak to me about time and time again is sickness absence. This is a big problem across the UK and creates a significant cost to businesses of all sizes. However the type of business that is most affected is one that is in the SME market. Small and medium sized businesses can ill afford the costs that sickness absence brings as they often have little flexibility. According to the latest CIPD research after the public sector and not for profit organisations, the manufacturing and production industry have the highest average of sick days at 6.2 days per year. The main cause of short term sickness absence is minor illness whilst long term absence is linked to heart problems, stroke and cancer.

    The first way to address sickness absence is to have a strict reporting procedure in place. There should be a clause in an employee's contract that states that they should phone in to report sickness to their line manager within one hour of starting work followed by regular communication if the absence is to continue. It should be the employee themselves and not a relative, partner or anyone else. They should phone in and not text or email. The idea behind this is that if an employee knows they will have to speak to their line manager and may not be ill at all, but just seeking a day off, they may think twice about doing so.

    The second way is to implement documented return to work interviews. These should be completed on the day the employee comes back to work. This may address the problem of sickness absence because the employee can be scrutinised by their line manager about the situation. If they have bee swinging the lead they may appear edgy - body language is key. The interview should include welcoming the employee back, discussing the sickness absence in full - is the employee better now, is there any further treatment, etc. The line manager should then ensure the employee knows their first responsibility is to their employer now they are back at work and should be filled into what has happened with their work since they have been off,

    The third way to address sickness absence is to monitor the situation - recording who has been off and why on a spreadsheet or in a human resource information system for a report to be produced. It can be very helpful and illuminating to see the information in black and white. Problematic members of staff can be highlighted and dealt with using a robust sickness absence procedure via documented meetings which will track how an organisation has dealt with an issue. This is really important if ultimately dismissal occurs with a potential employment tribunal claim lurking in the background. An employer needs to show they have been fair and reasonable.
  • Small businesses not Ready for Pension Auto Enrolment Oct 28, 2014

    In 2015 1.5 small and micro sized businesses must face implementing pension auto enrolment. It[​IMG]seems according to the media that many employers are not ready for pension auto enrolment. A Pension Regulator report shows that half of micro businesses do not even know when they are meant to be compliant. This is despite the wealth of information out in the public domain. Many small businesses have by now been informed by letter when their staging date will be and are given ample notice to comply.

    A recent article in the Independent newspaperhttp://www.independent.co.uk/news/business/sme/small-talk-many-employers-face-penalties-over-pensions-autoenrolment-9778756.html states that employers are sleepwalking their way past a legally binding deadline. This year 12,000 small businesses with 62-89 employees should have complied by 1 July 2014 but asked for a three month postponement which they are legally entitled to do. However, apparently many have still not complied and will face a fine by the Pension Regulator.

    Research done by NOW pensions highlights that many small businesses are approaching advisers very close to their staging date or even after the staging date has passed, which is far too late. Furthermore a survey done by Sage payroll software of IFAs showed that many of their clients don’t see auto enrolment as their top priority and only 1 in 5 businesses are aware of the process. This is despite an extensive government advertising “I am in” campaign using top celebrities such as Theo Paphitis to spread the word.

    Auto Enrolment is the Government’s flagship legislation to solve the country’s £28 billion pension black hole. It began in October 2012 initially with very large companies some of whom have struggled despite the resources available to help them comply such as Finance Directors and HR departments. No matter what employers and small businesses think about the process they must put a workplace pension in place or be at risk of huge fines. Unfortunately many do not have the know how, resources or time therefore early intervention is key to falling foul of the Pension Regulator.

    The Pension Regulator is policing the system. Once a pension scheme is in place and auto enrolment has been undertaken an employer must confirm via a compliance tick list and submit that to the Pension Regulator within five months. If companies fail to implement the auto enrolment process they will be tracked down and dealt with very harshly. Small businesses with the many costs they face, can ill afford to shell out unnecessarily.

    The Pension Regulator recommends starting the process 12 months before the staging date and this is very good advice. There is a lot of work to do – finding a provider whether that is for a private pension or NEST the government run scheme, setting up administrative processes and consulting with employees. My experience is that many small businesses and employers are burying their heads in the sand, but it is the elephant in the room and will not go away.
  • A Guide to the New Flexible Working Regulations Jul 16, 2014

    Flexible working for all was implemented on 30 June 2014. Previously it was only available to women with children and carers, now all employees with 26 weeks continuous service can make a request. Many employers may be panicking at this prospect but there is no need as any request can be turned down for business reasons. In this blog I provide a guide to the new flexible working regulations.

    There are quite a few changes to the procedure for making such a request, with the old, prescriptive, statutory regime being replaced by a “requirement to deal with the request in a reasonable manner”. This revised approach is reflected in a new ACAS Code.

    The basic right to request flexible work is unchanged. Employees can still make up to one written request every year, which the employer can refuse on any of the existing eight business grounds. The maximum compensation for a failure to comply with the new legislation remains at eight weeks' pay, with a week’s pay currently capped at £464 per week (2014).

    Any request must now be dealt with quickly and within a three month time scale, at the end of which the employer must notify the employee of its decision. The ACAS Code recommends that employers should talk to an employee privately after receiving a written request, allowing employees to be accompanied at any discussion, then consider the request carefully before informing the employee in writing of any decision. The employer should then discuss with the employee how and when the changes might best be implemented or allow an appeal.

    Although there is no requirement to allow an appeal, the ACAS Code suggests that employees should be allowed to appeal against a rejection. The appeal should be concluded, if possible, within the three month period. If more time is needed for any reason, a longer period should be agreed with the requesting employee.

    The employee must make a written application which should also:

    - state that it is an application made under the statutory provisions;

    - specify the change that the employee is seeking and when they wish the change to take effect; and

    - explain what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with.

    It might be beneficial for an employer to draft a standard template to accompany a revised policy on flexible working.

    An employer can treat a request as withdrawn when the employee, without good reason, has failed to attend both the first meeting arranged by the employer to discuss the employee's request or appeal and the next meeting arranged for that purpose. The ACAS Guide suggests that the employer should find out and consider the reasons for the employee failing to attend both meetings before reaching any decision to treat their request as withdrawn. Employers must notify the employee of their decision.

    Employers retain the right to refuse a request to work flexibly on the existing statutory grounds, which include cost; quality; performance; insufficiency of work during the periods the employee proposes to work; and planned structural changes. Although neither the Code nor the Guidance require it, employers should not only specify which of the statutory reasons applies when refusing a request, but also provide sufficient explanation as to why that reason applies. The Guidance gives examples of each of the business reasons.

    Employers should also:

    - Ensure any agreement to change employment terms is recorded in writing;

    - Be very clear about what is being expected of the employee who will be working flexibly. Trial periods can be used if an employer is unsure if the flexible working may not work.

    - Review current policies and procedures and amend in the light of the current changes.

    All requests should be treated fairly and consistently to avoid discrimination. Keeping written records is essential.
  • How to be a family friendly employer May 6, 2014

    If you have school age children and you work you will no doubt have noticed what appears to be the huge number of school holidays the children seem to have. In Northamptonshire the children have just enjoyed a two week Easter break, the May day bank holiday weekend and in another few weeks time it will be Whitsun half term. Trying to juggle childcare and work can be a nightmare. In this blog we give advice to businesses on how to be a family friendly employer and ease the way for employees who may be stressed working parents because of this situation.

    The government recently announced changes to the child care voucher scheme. Currently child care vouchers could enable an employer to be family friendly. From autumn 2015 almost two million working families could get a tax free allowance of up to £2,000 per child to help pay for childcare. Parents who are both in work with children under the age of 12 will be able to get a 20% rebate per child on the annual cost of childcare. The Tax-Free Childcare scheme will replace the existing childcare vouchers programme, which is only available when offered by an employer.

    The existing childcare voucher scheme will remain in place until the new system comes in during 2015. For a long time childcare vouchers have been the most popular employee benefit in the UK. Through salary sacrifice employees can benefit from tax and national insurance breaks when they take up the vouchers. They can be used for nursery care, childminders, au pairs as well as play schemes during school holidays and after school clubs. It costs an employer relatively little to set up a childcare voucher scheme yet can bring huge benefits to working parents.

    If an employer is unable to offer a child care scheme to their employees, it is useful that they can provide information to working parents of where there are schemes in the area.

    Flexible working has been available for quite a few years for parents with children up to the age of 18 and it is being extended in June 2014 to all employees. Flexible working can allow working parents the elusive work life balance helping them to spend precious time with their children and cut childcare costs. The new legislation being introduced this summer will be less prescriptive than currently in terms of the procedure. The timescale for responding to requests and setting up meetings will not be set in stone but left to the employer to deem what is reasonable. Hopefully employers will act reasonably in how they manage flexible working requests. Many managers are fearful of granting requests in case things go pear shaped. However if both parties think through the consequences of a request in advance of a meeting then any problems can be aired and hopefully solutions found.

    Other ways to help employees with children are to offer discount vouchers and retail cards for theme parks and restaurants which will help summer holiday spending.

    Benefits an organisation can offer to enhance its reputation as a family-friendly employer include emergency childcare, school holiday clubs, nursery discounts and travel insurance for family holidays. Employers can also use voluntary benefits including retail discounts and savings, to help working parents.

    Britain can be a very un-family friendly place to work with only 26% of employers offering a back to work policy according to research done by Mumsnet in 2013.

    New legislation covering shared parental leave will come into force in April 2015 and this will encourage employers to change their provisions of helping parents back to work putting the appropriate procedures in place. Perhaps many more male employees could be off work for longer periods.

    A good employer will look at developing procedures for enhanced parental leave and emergency care leave.
  • Four Reasons To Review An Employment Contract Apr 23, 2014

    Much of the work that I do as an HR consultant is reviewing employment contracts and employee handbooks. This can be due to taking on a new client with existing documents as well as providing this service to existing clients. Here I provide five reasons to review an employment contract.

    Employment law seems to change every five minutes. The government have now decreed that employment law changes should be made April and October each year, but often changes are often implemented outside of these months. Employment law therefore can move on very quickly and employment terms and conditions can get very out of date if they are not reviewed on a regular basis. For example pension auto enrolment will be hitting the SME market and it is important to add in an appropriate clause to the contract to comply with statutory law. This is important if there is no clause relating to pensions in the document or an existing pension scheme is detailed.

    Sometimes an employment contract may not contain all the appropriate clauses. For example I recently reviewed a document that did not contain a continuous service clauses. This is essential as detailed by the Employment Rights Act 1996. In a TUPE situation where an employee transfers from one employer to another and possibly again and again, often the only way to track an original start date is by the continuous service date on the contract. The Employment Rights Act 1996 (part 1) details all the essential clauses that need to be included. http://www.legislation.gov.uk/ukpga/1996/18/part/I

    Another reason for an employer to review an employment contract is when they wish to make changes and negotiate new terms. A review of the existing terms first may highlight the changes that need to be negotiated. However, the employer can not change terms and conditions of employment on a whim, there needs to be clear justification, not least, to convincingly explain the situation to employees. It is important that all the terms are clear. Often I come across contracts that contain discretionary clauses. When discretion is used to make judgements human subjectivity can come into play possibly leading to discrimination when one employee is treated less favourably than another. Rather than have discretion, clauses should be clear to avoid any discriminatory variances.

    Following a merger or acquisition where two companies (or more) may come together, a company may be faced with various terms and conditions. An employer may wish to harmonise terms and conditions following a TUPE situation for various reasons - difficult business conditions, simplicity, cohesion, redress imbalances, restrictive convenants or difficulty with providing benefits.

    Previously with TUPE legislation it was impossible to change terms and conditions post-merger except for an ETO (economic, technological or organisational) reason as previous terms were protected. However since 31 January 2014 the law has changed. Businesses with collective agreements may negotiate a change one year post-transfer provided the changes are not less favourable. Contractual changes will be permitted for economic, technical or organisational reasons with the agreement of the employee and or where a contractual right of variation exists. However, the latter does not permit an employer to unilaterally impose a change and consultation should always be undertaken and written agreement gained.

    If a contract is reviewed and changes are to be made consultation with and written agreement from employees is essential. Employees can be provided with a brand new set of employment terms and conditions to sign or may be issued with contract variation letter with copy for signature depending on the extent of the changes.
  • How to deal with cancer in the workplace Apr 2, 2014

    The incidence of cancer is on the rise. The cost to the UK economy for employees dropping out of of work due to the illness is £5.3bn. Most of us know someone that has been affected by it and it is important to know how to deal with cancer in the workplace. At a recent seminar organised by MacMillan Cancer Support I learnt some useful information which I shall share with you in this blog.

    Many employers do not know how to support staff with cancer. 82% of employees with cancer want to work, however, they are 1.4 times more likely to be unemployed. 47% of those with cancer have to give up work or change their roles because of the diagnosis. 47% say that employers don’t discuss sick pay entitlement, flexible working or workplace adjustments which is quite shocking. Cancer is a disability and covered by the Equality Act, yet only 49% of managers know this fact. Only 28% of managers have received training on the legislation. MacMillan Cancer Support provides support online for SMEs to help manage situations.

    Employees who are faced with cancer can also face financial difficulties. They risk losing their homes if their income drops. MacMillan provide hardship grants which can help pay utility, heating and phone bills. Last year £90,000 was paid out in grants which can be accessed through the NHS.

    The key issues for employers are managing confidentiality, sickness absence, discrimination, capability and ultimately termination.

    An employee does not have to share 100% of the information about their condition. If a medical report is produced under the Access to Medical Records Act the employee has the right to change the report and to have it with held from their employer.

    Employers must have express consent to disclose any information to colleagues. Where an employee is refusing to allow an employer to divulge any information to anyone, it might be a good idea to try and persuade the employee that a brief explanation might be needed in order to reduce curiosity about the employee’s behaviour or absence.

    Employees who go on long term sick due to their condition should be contacted on an agreed basis either by letter or phone. It is important for the employer to keep in touch and not ignore the employee otherwise they could resign and claim for constructive dismissal.

    Cancer is a distressing condition and it is important the employers help manage the work related situation as best they can. Training and education for managers and key members of staff is really important.
  • E cigarettes in the workplace - smoke and mirrors? Mar 25, 2014

    E-cigarettes are causing a storm. They have been introduced to help people give up smoking and sales have soared over the last ten years. Currently there are 1.3 million people in the UK that use the devices according to Action on Smoking and Health, therefore, employers need to understand how to manage e-cigarettes in the workplace.

    From 2016 electronic cigarettes will be licensed as a medicine. Currently they are marketed as a safe way to help stop smoking. Many are designed to look like cigarettes, although some look like a pen. They vaporise a nicotine solution that replicates smoking tobacco but are not licenced by the Health Act 2006 which governs that. They do not give off smoke, do not contain tobacco but do contain chemicals. The British Medical Association states that more research needs to be done to establish the safety of the nicotine replacement devices as some experts have questioned this. In some countries they are very heavily regulated.

    E-cigarettes are not a quit tool, they provide the individual with an alternative to smoking tobacco with the ability to inhale the vapour. Even if they are safe and whilst it is not illegal to use an electronic cigarette in the workplace, simulating smoking can cause employee disharmony therefore there are important considerations for employers.

    Pregnant workers or those who are trying to give up may be particularly concerned about colleagues who use e-cigarettes in the workplace and mimic real smoking. In this day and age when well being is actively promoted and cigarette smoking in indoor public areas is banned, damage to the professional image of an organisation may be done if employees using e-cigarettes are viewed by customers who come on site. If e-cigarettes are permitted, therefore, they may give off the wrong message.

    As a minimum employers should have guidelines that prevent the use of cigarettes in customer facing areas, in the presence of visitors and in catering or food preparation areas. Whilst many e-cigarettes are odourless, some do have an odour eg cinnamon that may be irritating to colleagues so additional guidelines on odour-free e-cigarettes should be included.

    The potential benefits to employers for allowing the use of e-cigarettes are fewer smoke breaks and fewer health problems related to smoking and time of work. However, many employers are now starting to ban e-cigarettes totally in the workplace.

    If employers are to ban the use of e-cigarettes they must amend an existing no smoking policy and or drugs/alcohol policy to include that fact as well as detail their approach to managing the situation. If no policy exists, one should be created. E-cigarettes should be expressly banned in company vehicles, in the workplace and on customer premises. Any changes to the policy, or development of a new one, needs to be well communicated to the workforce to avoid any misunderstandings.

    Employers should consider providing a separate outdoor shelter for e-cigarette smokers, who are effectively non-smokers, if they provide the same facilities for smokers. After all it would not be fair to let these workers to share the same facilities as those who are smoking cigarettes. The number of smoking breaks allowed should be documented in a policy linked to the disciplinary policy for abuse of this privilege.

    It is a business decision of whether an employer decides to allow the use of e-cigarettes or ban them.
  • Is Performance Related Pay Back in Favour? Mar 14, 2014

    Michael Gove recently announced the introduction of performance related pay in the teaching industry from September 2014http://www.theguardian.com/education/2013/jan/15/teachers-pay-performance-michael-gove Instead of automatic annual increments progressing through the grade, teachers will be expected to demonstrate good performance before receiving a pay increase. Schools should be working on how they will put a procedure into place. This is not a new phenomenon. When I was working for the Probation Service over fifteen years ago, it was introduced for the senior management team. So is performance related pay back in favour?

    The idea is that performance related pay (or merit pay) will reward excellent teachers more money and hopefully incentivise poor performers to increase the quality of their teaching. Teachers’ performance will have to be closely appraised so that the link between performance and pay is very clear. Whilst there are good and bad teachers in the education system, there are advantages and disadvantages with this idea.

    The plan is for performance related pay to increase flexibility in schools, to attract and retain quality teachers, to attract more graduates into the profession and create a culture of professional development.

    A report produced by the Policy Exchange about performance related pay and teachers stated that a well designed system should include:

    • An evaluation based on several measures, not just test or exam scores.
    • A prolonged evaluation over more than one year to reduce volatility in results and to allow staff to adjust to the new assessments.
    • Financial rewards based on increases in base salary, rather than through bonuses.
    • The use of performance pay to recruit and retain effective teachers, including the use of Pupil Premium funds to pay for this.
    • The use of performance pay not as a way of holding down pay, but as a reward for real excellence. This may require the redesign of teacher pay bands within a school.
    Teachers’ performance may be assessed on a range of areas according to government guidelines:

    • impact on pupil progress
    • impact on wider outcomes for pupils
    • contribution to improvements in other areas (eg pupils’ behaviour or lesson planning)
    • professional and career development
    • wider contribution to the work of the school, for instance their involvement in school business outside the classroom
    In the past it has been difficult to introduce performance related pay into the public sector due to the difficulty of measuring performance in certain roles.

    The rationale of linking high performance to pay attempts to develop a high performance culture and should provide equity and fairness. It is widely used in the private sector with many managers receiving it rather than low grade workers.

    For performance related pay to be valued by employees there needs to be a clear link between good performance and pay. One barrier to its effective use is subjectivity of the line manager. They should receive thorough training in the operation of the appraisal system with lots of openness and transparency. The variances between hard and soft managers needs to be managed and favouritism dispensed with. The issue of possible discrimination needs to be addressed when training and educating the managerial workforce.

    The element of performance related pay needs to be worthwhile, as with any employee reward. Too little and it will not be sufficiently motivating. The pay budget will have its limits and must be distributed appropriately across those who are performing well.
  • Rise in Employment Tribunal Costs for Employers Mar 5, 2014

    There will be an increase in employment tribunal costs soon. The level of compensation an employment tribunal may award is due to go up on 6 April 2014 under the Employment Rights (Increase of Limits) Order 2014 (SI 2014/382. The maximum compensatory award for unfair dismissal will rise from £74,200 to £76,574. The maximum amount of a week’s pay, used to calculate redundancy payments or various awards including the basic or additional award of compensation for unfair dismissal, also rises from £450 to £464.

    Tribunals will also have the power to impose financial penalties of from £100 up to £5,000 on employers who are deemed to have breached a worker’s employment rights with aggravating features. What an aggravating feature looks like has yet to be defined as cases proceed. The Enterprise and Regulatory Reform Act 2013, in its bill form, suggested that aggravating features could include:

    • The size of the employer
    • The duration of the breach of the employment right
    • The circumstances of the case and
    • The employee and employer’s behaviour
    It also stated that a tribunal may be more likely to find that there are aggravating features where:

    • The action was deliberate or committed with malice
    • The employer was an organisation with a dedicated human resources team, and/or
    • Where the employer had repeatedly breached the employment right concerned
    A tribunal may be less likely to find that there are aggravating features where an employer:

    • Has been in operation for only a short period of time
    • Is a micro business
    • Has only a limited human resources function, and/or
    • Made a genuine mistake
    The tribunal shall judge an employers’ ability to pay and the penalty shall be paid to the Secretary of State. This initiative will be implemented on 6 April and shall apply to claims lodged on that day and thereafter. Even where no financial award has been made the employer may be required to pay a financial penalty anyway.

    This may not be a welcome change for employers where the government has pledged to reduce red tape. However it has been said that the existing employment tribunal system is employer friendly (although not many employers will say that). The introduction of costs against an employer will be balanced out by the fees introduced for claimants to pay to lodge a claim. Recent case law has shown that successful claimants will also recover tribunal fees from a respondent with a costs order.
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