Employment Law for HR Directors

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handling an employee grievance 8 cropped to 300 w x 250 hThis is a 5 step guide to handling an employee grievance effectively and efficiently in order to save management time, preserve employee relations and keep the business out of Employment Tribunals. It includes 2 Golden Rules of handling an employee grievance.

Grievances are concerns, problems or complaints raised by an employee about workplace issues such as their work, workload, where they work or who they work with.  These grievances are best dealt with at an early stage informally, but employers must be prepared to handle employee grievances that cannot be resolved informally using a formal employee grievance procedure
 
It’s important for every business, whatever its size, to have a formal grievance procedure in place, which takes into account the ACAS Code of Practice.  Include your formal grievance procedure in the staff handbook, and, importantly ensure your staff are aware of it. Employers have a duty to provide staff with details of any workplace disciplinary and grievance procedures.

Discipline and Grievance – Acas Code of Practice.

The procedure should require the employee to set out in writing the nature of their grievance and for employers to deal with the grievance fairly and consistently.  Do not ignore any concern or complaint raised by an employee, however casual the manner in which it was raised.
These are the 5 steps:

  1.  INFORMAL ACTION– Initially and as soon as they can the line manager should have a quiet word with the employee making the complaint. Problems can often be settled quickly and informally in the course of everyday work. However, if the grievance is not settled at this stage or circumstances make this route inappropriate then, if they have not already done so, the employee should be requested to submit a formal Grievance letter.
  2. INVITE EMPLOYEE TO A FORMAL MEETING – This should be held in a private and confidential room between the Manager designated to hear the Grievance and the employee who may be accompanied by a work colleague or Trade Union official.  This is the opportunity for the grievance to be thoroughly discussed and any witnesses called.
  3. INVESTIGATION – Depending on the complexity of the grievance it may be necessary to adjourn the meeting so that further investigation may take place before any decision is taken.
  4. COMMUNICATE DECISION & KEEP RECORDS – After the grievance meeting and any investigations have taken place, the employer needs to decide whether to uphold or dismiss the grievance and communicate this decision to the employee in writing without unreasonable delay, usually within 10 working days. The HR Director or Manager handling the employee grievance must ensure that the minutes of all formal grievance meetings are taken and copies given to the employee for information. The minute taker should not be part of the discussions about the outcome of the grievance or appeal other than to record the key points of the discussion.
  5. APPEAL – if the Grievance is rejected or partially rejected then the employee has the right to appeal against that decision. The appeal should be heard promptly and wherever possible by a Manager not previously involved in the case.   The employee may be accompanied as before and notified in writing of the decision, again within 10 working days is standard practice.

 

THE 2 GOLDEN RULES OF HANDLING EMPLOYEE GRIEVANCES

  1. A very helpful question to ask an employee raising  a grievance is “what outcome do you want from this grievance?” This tends to focus the employee’s mind on the solution he or she is looking for rather than just the problem.
  2. BE PREPARED FOR A GRIEVANCE.   Check that there is an up to date procedure in place, published in the handbook, that supports the resolution of grievance issues in your workplace.

Please also note an employee can raise a grievance during a disciplinary process.  The disciplinary process may be temporarily suspended or if the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently. The size of the business may require an expert outside advisor e.g experienced HR professional to hear the Grievance, the Appeal or even the Disciplinary.

Bear in mind also that where the Grievance Procedure itself is not appropriate then with the employee’s consent an external Mediator might be more suitable.
Click here or view our presentations opposite for the slide share on this topic.

Handling an employee grievance – 5 key steps for HR Directors and employers from legalpartners


Confused about the National Living Wage and the National Minimum Wage?  

You are not alone. Employers and workers alike find these terms confusing to say the least. This article explains difference between the National Living Wage rate and the National Minimum Wage rate and shows the new increased rates from 1st April 2019.

From 1st April 2019, all workers aged 25 and over are legally entitled to be paid at least £8.21 per hour. This is the National Living Wage (NLW). 

 

 

National Minimum wage National Living Wage 2019 explainedWhat is the National Minimum Wage? (NMW)

The National Minimum wage (NMW) is what it says: the minimum pay per hour most workers are entitled to by law. Workers includes all employees and workers: part-time, flexible and agency workers and those working under apprenticeship schemes. There are different rates for each age group, from school leavers (16yrs) upwards.  The government sets these rates and reviews them yearly. The rates change in October each year and are advised by the independent body Low Pay Commission.  The increases in this years National Minimum wage rates were  recommended by the Low Pay Commission. 
 
All employers are legally obliged to pay the National Minimum Wage, irrespective of their size.

What is the National Living Wage? (NLW)

The short answer: The National Living wage is the highest band of the National Minimum Wage which staff should be paid if they are aged 25 or over.
In April 2016, The Government introduced The The National Living Wage for workers aged 25 and over. Launched in 2015 by George Osborne, The National Living Wage was part of the government’s aim to raise the wages of workers aged 25 and over to £9 per hour by 2020. Despite adopting the term “Living Wage”, The National Living wage has nothing to do with The Living Wage: The Living Wage is set by the Living Wage Foundation, see details below.
Basically, the Government’s National Living Wage was actually just a new minimum wage for workers aged 25+, but rebranded as The National Living Wage.   This is extremely confusing  given that The Living Wage already existed, still does, and is completely different, see below.
The first increase to The Government’s National Living Wage (NLW) for workers of 25yrs + came in April 2016. Yearly increases to the NLW (and the NMW across all age brackets) followed.

So in summary, on 1 April 2019:
The National Living Wage rate per hour (for 25+ yr olds) increases by 33p to £8.21 p.h
The National Minimum wage rates increase:
for 21-24 yr olds  to £7.70
for 18-20 yr olds  to £6.15
for 16-17 yr olds by  £4.35.
Apprentice rates change according to age and time spent in Apprenticeship also, more details on these can be found here.
The National Living Wage will most likely increase in April 2020 as the government pushes ahead to its target National Living Wage of £9p.h by 2020. The National Minimum Wage increases each April and October.
There are penalties on employers for failure to pay the correct amount, these are outlined below. But first, lets consider the Living Wage.

So,what is the Living Wage?

VOLUNTARY LIVING WAGE

The Living Wage is a voluntary hourly rate, independently calculated each year by  Living Wage Foundation to meet the real cost of living. Don’t confuse the Government’s National Living Wage with this voluntary Living Wage. The Living Wage is a benchmark and a recommendation of what it will take to improve living standards now, not in 2, 3 or 5 years time.
The Government’s National Living Wage (and National Minimum Wage of course) is enforcable by law. The Living Wage Foundation’s Living wage is voluntary. Oliver Bonas became the first high street retailer to pay staff the accredited living wage in September in 2015.
The current living wage is £8.75 per hour and £10.20 per hour in London.
There are over 3,900 accredited Living Wage employers across the UK. In order to become an accredited Living Wage Employer you need to pay all of your employees a living wage, and have a plan to extend this wage to regular on-site subcontracted staff as well.

image credit: www.Livingwage.org.uk

image credit: www.Livingwage.org.uk

 

 

 

 

 
A few important points to remember about the National Living Wage and The National Minimum Wage.

National Living Wage, National Minimum Wage, penalties for non compliance:

Currently non payment is enforced by HMRC who can issue a notice of underpayment. This will calculate the arrears of pay to be paid and the penalty set at 100% of the total underpayment of the NMW, with a minimum penalty of £100 and a maximum penalty of £20,000. If an employer does not comply with the notice of underpayment, the enforcement officer can:

Employees concerned they are not being paid the NLW or NMW are advised to check with Acas then speak to their employer in the first instance and raise a grievance if necessary. They can report an employer to HMRC and take their employer to a tribunal (following early conciliation through Acas) if the situation remains unresolved.
Back in 2016 the government started to name and shame companies who fail to pay the National Minimum Wage.
A package of measures intended to improve compliance with the NMW and the NLW  include:

 

All deadlines and staging dates for auto enrolment have now passed.  This means that under the Pensions Act 2008, every employer in the UK must put their qualifying employees in a workplace pension scheme (called auto enrolment) and, where appropriate, pay contributions.  If you employ just one person, you are classified as an employer and have certain legal duties. This article from the pensions regulator web site explains more about ongoing pensions duties for employers.
If you are employing staff for the first time (or haven’t caught up with auto enrolment) act now and click on this link to the pensions regulator web site, to find out what to do and by when.

Auto enrolment, Employer contributions increasing in 2019.

The minimum amounts that employers and their staff have to pay into their workplace pension scheme increased in April 2018,  and increase again in April 2019.

As the employer, you must by law make a minimum contribution towards this increased amount. You can decide to pay contributions at a rate that suits your business objectives, so long as you meet at least the Total minimum contribution figure, on the far right in the table below. If, for example, you decide to pay the minimum contribution (i.e 3% from April 2019 onwards) your employees must make up the difference (contributing 5%) to reach the total of 8 % minimum contribution. 

Date  Employer pays minimum
contribution of

Employee pays
contribution of

Total minimum
contribution of
6th April 2018
– 5th April 2019

2%

3% 5%
6th April 2019 onwards

3%

 

5% 8%

 

Contributions are set on “qualifying” earnings of over £112 per week to an upper limit of £827 per week.

 

2. Remember to keep assessing your workforce, as someone not yet old enough or not yet earning the minimum salary required may in time fit the criteria and need to be auto enrolled. The link below explains what salary levels qualify for pension auto enrolment Pension Regulator Know Your Workforce site –

3. Review your pension arrangements – there is paperwork to complete if you want an existing pension scheme to be approved. The pension scheme you use for auto enrolment must pass a ‘Quality Test’ in order to comply with new legislation. There is to be consultation on simplifying this too.

4. Communicate the changes to all your workers – The Pensions Regulator requires employees to be provided with specific information about auto enrolment, including what it means for them and their right to opt-out.

5. Automatically enrol your ‘eligible jobholders’ –  and remember that in three years you will need to re-enrol any who decide to opt out

6. Register with The Pensions Regulator and keep records – You will need to register your scheme with The Pensions Regulator.  Registering the scheme will include providing a range of evidence to the regulator as listed below:

You will also have to provide evidence to the Pensions Regulator on an ongoing basis demonstrating that you have met your auto enrolment responsibilities. This evidence will include:

Failure to provide sufficient evidence will incur penalties and fines.
Be aware too that employers who fail to heed a 28 day warning notice from The Pensions Regulator risk a fine which increases each day. The fine for small employers with 1 to 4 staff who fail to comply with an “escalating penalty notice” is £50 per day and £500 per day for those with 5 to 49 staff.

7. Contribute to your workers’ pensions  – The legislation sets out minimum contribution levels at which eligible employees must be automatically enrolled. As in the diagram above, employer contributions will start at 1% of an employee’s salary. This will increase to 2 % by April 2019, then rising to 3%; dates are subject to approval by Parliament and may change.  For more details and planning advice visit http://www.thepensionsregulator.gov.uk/employers/planning-for-automatic-enrolment.aspx

Employer and Employee Contributions for pension auto enrolment

Employees must also contribute to the pension to receive the employer’s benefits. Employee contributions will start at 0.8%. This will increase to 2.4% by 2019, then rising to 4%. The Pensionable Salary for every worker between £5,668 and £41,450 per annum includes:

 

 

What to do next.

What is the impact on employers’ cashflow of Pension auto enrolment?

It is important that all businesses start planning for auto enrolment and consider how this will affect cash flow and how you will deal with it in terms of your employees eg will this be a form of pay increase?

Which employees qualify for Workplace Pension Schemes?

Eligible jobholders have to be automatically enrolled. This is a jobholder who:

Also check The Pension Regulator Know Your Workforce web site  here

Non-eligible jobholders are not eligible for automatic enrolment but they must be offered the opportunity ‘opt in’ to an automatic enrolment scheme. This is a jobholder who:

Employees earning less than £5,668 have the right to join a pension scheme but there is no obligation on employer to contribute.

What are the age limits for pension auto enrolment?

The age band for eligibility is between 22 and the state pension age, 67. Retaining the state pension age as the upper age limit gives people access to pension saving during their normal working lives and avoids automatically enrolling people for whom saving is no longer the right option. Assess your workforce to see how many are likely to opt-in to the new workplace pension scheme.

What changes do employers need to make to Employment Contracts and staff Handbooks for workplace pensions?

You will need to inform and consult with staff as every employment contract will need the clause about pensions changed according to what type of workplace pension scheme you put in place. The staff handbook will also need to refer to the pension auto-enrolment scheme you have put in place.

What payroll changes need to be made for workplace pensions?

You will need to contact your payroll provider to ensure the correct changes are made by way of salary deductions and reporting in pay slips. You should also decide if your business is going to offer salary exchange arrangements. If salary exchange is used as well that can add additional complications. Salary exchange is a mechanism to enable staff to exchange part of their gross salary in return for a non cash benefit such as employer contributions into a pension scheme. This means they get 100% of the salary exchanged going into their pension scheme because no PAYE or NICs are deducted.

 

Back in June 2014, the right to request flexible working was extended to all employees who have worked for 6 months for their employer. Since that date, employers have been legally bound to consider flexible working requests from employees, and to give a decision within 3 months of the request. Note, the right to request flexible working is not yet extended to workers. 

Read more on the Flexible Working Laws  & what to do when faced with a Flexible Working Request.

Employers have a duty to consider requests “in a reasonable manner”.
The obvious approach for employers is to sit down with the employee and discuss/agree a workable solution.

There is a new procedure to follow, as well as 2 Acas documents: a brief Acas Code and a longer Acas Guide to handling flexible working requests, and what the “reasonable manner” means in practice.

Below is a flow chart showing the procedure for handling a flexible working request.  It’s a simple principle made more complicated by complex regulations which busy HR Directors and employers need to follow and understand. Click on the  image to enlarge it.
Flexible Working requests, flow chart of the new procedures

Be prepared to handle flexible working requests

It makes good sense for Employers and HR Directors to prepare for a significant increase in flexible working requests, for handling multiple requests coming in at the same time, and for the administrative challenges of running teams with differing working patterns.

1. Update handbooks with new Flexible Working Policy

If your company has an existing flexible working policy, it will be out of date after 30th June 2014 and will need to be updated to reflect the new laws and procedures.
If not, take advantage of this opportunity to think about flexible working and to create a policy that works for your business and your workforce.  You can use trial periods to test and measure the effect, and refine the policy to make it work for the business. Companies with policies in place  are able to show they are complying with the new laws and regulations, to demonstrate this to employees and prospective candidates, and to benefit from the resulting productivity gains and attractiveness/stickiness as an employer.

2. Template letters responding to a request for flexible working

Employers are also now required to tell employees how to apply for flexible working. There is more administration involved for the busy HR Director, we suggest saving template request letters, and response letters from the company, into your files, so you have them to hand.

3. Best practice for handling requests for flexible working

As more employees request, and are granted,  flexible working going forward, it will become more challenging for companies to be consistent in their responses to requests.  Companies will also need to minimize the disruption of managing multiple requests at once, and of managing the increased administration involved in running a workforce where more employees are on flexible working agreements than ever before.
Take an example from a recent PLC client, whose 5 strong administration team all requested, and were granted, flexible working.  The company didn’t plan sufficiently, and the now fractured team is unable to deliver the administration service that the company needs. As a result, the head office is considering moving the administration function to another part of the country, making the whole administration department redundant.

Flexible Working Toolkit: policy + templates + legal guidance

New Flexible Working laws Guide & Toolkit from The Legal PartnersWith this in mind, we’ve put together a Flexible Working  Toolkit to enable busy Employers and HR Directors to comply easily with the new rules, manage and administer the  new procedures with maximum benefit and minimum disruption.

The toolkit includes:

 – a flexible working policy,  a new one / updated version,
 – plus all  required template letters
 – plus a  30 minutes consultation (by phone, email, Skype) with one of our lawyers to help you tailor the policy to the business.

All for £299+VAT.  For details, and for more in-depth advice on creating a flexible working policy for your company, please contact The Legal Partners on 0203 755 5288 or by email Richard.mullett@thelegalpartners.com
 
A final word about  the rights of working parents.
Its fair to suggest from the Acas short guide to flexible working requests,  that Acas expects the majority of flexible working requests will still be related to childcare, and workers returning  from maternity leave.  Below is a table showing the rights of working parents, taken from this Acas short guide to flexible working requests so you know what rights ACAS is highlighting to employees.

Rights of working parents, Acas short guide to flexible working

Rights for working parents_Acas_flexible working short guide
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 

 

 

 

Useful links: Right to request Flexible Working | Advice and Guides | Acas

New Employment Laws 2018Below are listed all the changes in Employment Law for 2018, and those on the horizon coming in 2019.
Larger employers were kept very busy preparing to publish their Gender Pay Gaps by the April 2018 deadline.  Companies are supposed to detail plans for how they will tackle any gap. Given the sizeable gaps revealed across the board, and the media spotlight on the issue, the pressure on individual employers to show reduced gaps by next April 2019 will be very high; an ongoing priority for HRs and boards.

There are important changes to the taxation of termination payments, as well as increases to the National Minimum Wage rate in April 2018 (and coming in April 2019). 2018 sees increases also to statutory payments e.g SSP and redundancy pay.
Throughout the year, the courts have been busy deciding on the employment status of workers in the gig economy. We explain the likely effect of the rulings, as they come in, on business practice.

Following the abolition of ET fees last July, the number of people lodging claims at Employment Tribunals has been rising fast, to a remarkable 90% increase between October to December 2017 compared to the same period in 2016, according to the Ministry of Justice figures published in March.  (It’s worth noting that this 90% rise is from a very small base, as the numbers of employees bringing ET cases plumetted after fees were introduced in 2013). Nonetheless, now would a good time to review our advice for best practice and rules for de-risking your business against workplace claims.

And then there is GDPR compliance from 25th May and beyond. We have listed the 10 things Employers and HRs must do. The key with GDPR compliance is to start, and then to keep going, reviewing it regularly.

Click on the headings in the table for more details.  The “Next Steps” column highlights initial actions to take.

To keep up to date with the new employment laws and what they mean for your business, subscribe to our updates by clicking the sign up now button in the column to the right of this article.

Key Employment Law changes for employers 2018

 

Date Key Employment Laws
Spring 2018 – 2019
Next Steps
1st April 2018

National Living Wage rise

From 1st April 2018
New hourly rates of pay apply: 

25 yrs+          £7.83 (NLW)
21-24             £7.38
18-20             £5.90
under 18       £4.20
Apprentice   £3.70

The Low Pay Commission has begun to consult on the national minimum wage rates for 2019.

We explain the difference between National Living Wage, National Minimum Wage and the Living Wage here.

Ensure all staff salaries are reviewed to comply with the new hourly rates.
1st April 2018

 

 

 

 

 

 

 

 

Statutory Payments:
SMP, SPP, ShPP, SAP

From 1st April 2018, the rates of Statutory Maternity, Paternity, Shared Parental and Adoption Pay rise to £145.18 per week
(or 90% of the employees average weekly earnings if this figure is less than the statutory rate).

From 1st April 2018, employees qualifying for SMP, SAP are still paid enhanced pay of 90% of their average weekly earnings for the first 6 weeks, but the remainder (33 weeks for SMP, for SAP the remainder of the adoption period) is paid at this new rate £145.18.

Maternity Allowance also rises to £145.18 per week from 9th April 2018.

SMP,SPP,ShPP, SAP rate rises from£140.90 per week to £145.18 per week.

Calculate SMP, SPP, ShPL, SAP

6th April 2018

SSP, Statutory Sick Pay

The rate of Statutory Sick Pay  increases to £92.05 per week.

The same qualification criteria apply to receive these statutory payments.  

To be entitled, the employee’s average earnings must be equal to or more than the lower earnings limit.The lower earnings limit increases  to £116 in April 2018.

SPP rises from £89.35 to £92.05 per week.

Calculate SSP

 
6th April 2018

Changes to taxation of termination payments

From 6th April 2018, all payments in lieu of notice are subject to tax and NI, regardless of whether they are contractual or not.

In the past, whether or not a payment in lieu of notice (PILON) was subject to tax depended on the terms of the employee’s contract and what was the custom and practice of the employer when making previous PILONs.

If the contract had an express clause allowing payment in lieu of notice, or if the employer’s practice was to pay in lieu, the payment was considered as wages, and subject to tax and NI.

If there was no express clause, no custom and practice and no possibility of it being implied in the contract, the payment was considered as compensation for breach of contract, and the first £30,000 was tax free.

HMRC has tightened up the rules so that in almost all cases the employer will deduct tax and NI from the leaving employee for any payment which covers the notice period which the employee would usually have worked but the employer has decided instead to pay as a PILON.

The employer will need to show to HMRC a calculation of this Post-Employment Notice Pay.

Take note, the Treasury now has power to change the £30,000 tax free termination payment level. An additional tax free or ex-gratia compensation payment is sometimes agreed in a settlement negotiation. This payment does not have tax or NI deducted up to the £30,000 level because it is not a contractual payment under the employment contract eg. for salary and benefits, commissions, bonus etc. For any compensation payment above £30,000 the employer must deduct tax and from 6 April 2019 employer NICs (currently 13.8%) but not employee NICs (currently 2%).

Ensure you deduct tax and N
I from all payments in lieu of notice.

Settlement negotiations are usually complex.

We will help you make sure that the Post-Employment Notice Pay is correctly calculated so you are ready if HMRC investigate.

Employers will need to ensure they can clearly explain the taxation of the settlement payments so the employee knows they are being treated fairly and correctly.

Get in contact to plan these negotiations before you start them and to ensure that the settlement package complies with these tax law changes.

4th April 2018 deadline for publishing
Gender Pay Gap reporting

for the private sector.

Over 10,000 private and charity organisations with more than 250 staff published their gender pay gap information by the 4th April deadline. The information was made public on a government database, and the results caused a media storm. The data shows that 78% of employers pay men more than women. 8%  reported no gap at all.

The Gender Pay Gap figures of large public sector employers, reporting by the end of March, revealed that men are paid, on average more than women in 90% of cases.

Women working in the public sector receive on average 19% less than men, with significant gaps reported in NHS, universities, central and local government.

The gender pay gap is the difference between the average hourly earnings and bonus payments of men and women. It is worked out using most common hourly earnings figures. See a worked example below.

Companies are also asked to report the difference in median hourly earnings and bonus payments of men and women. This is a typically more accurate figure, as the mean (a simple average) can be skewed by a handful of highly paid employees.

This is just the beginning of a longterm nationwide debate as UK organisations work to limit and remove the gap.

Whatever the size of your business, consider taking new or faster actions to identify, reduce or eliminate gender pay gaps within your organisation. Follow our worked example of a simple pay gap calculation below.
Use the Government calculator to calculate your organisation’s gender pay gap, and be prepared to answer questions from your workforce.

ACAS reporting guidance also has some helpful tools for gender pay gap reporting including a template letter for reporting to employees.

Much has been written already in the media about the reasons for the sizeable gender pay gap in the UK that has been revealed by this reporting. The data suggests that the principal reason is under-representation of women in senior roles.

Removal of unconscious bias from organisations, a call to embed a culture of flexible working, and increased help with childcare costs are among many ideas that are being considered.

Solutions by sector, and on a company by company basis are likely to emerge as sectors and organisations take action to address their specific challenges, and effective best practice begins to appear, and be adopted.

25th May 2018
New Data Protection regime arrives GDPR

 

The EU General Data Protection Regulation (GDPR) harmonises data protection rules across the EU including the UK and will affect employers in 2018.The new Data Protection Act 2108 enshrines GDPR into UK law no matter what happens with the UK:EU relationship.

The overall premise of GDPR is that individuals should be in charge of their personal data. GDPR require companies (called “Data Controllers” because they determine “How” and “Why” personal data is collected and used) to analyse and make clear how they collect and process the data of an individual (called a “Data Subject”), why they are keeping it, for how long, and how they keep it secure.

The Information Commissioners Office (ICO) can levy fines on firms who break the rules. The fines can be up to 4% of turnover in serious situations.

Every employee will be a Data Subject and his/her HR data is covered by GDPR. His/her HR data is personal information from which the employee can be identified. e.g names, addresses, bank details, IP address, national insurance numbers, next of kin, sickness absence and health data.

The employer has to be particularly careful to ensure it clearly explains to employees why it may need to collect health data and certain other sensitive data eg ethnicity for equal opportunities monitoring at the recruitment stage.

The changes, put briefly, are as follows:

6 principles: these principles confirm that the employer can only collect data with basically employee consent or where there is a legitimate purpose which is clearly explained. The employer should only collect a reasonable and necessary amount of data, maintain its accuracy, keep it for only as long as is necessary and store it securely (whether onsite or via a third party (called a “Data Processor”) eg a payroll supplier using the cloud.

Accountability: this means that the employer must show it is complying with the GDPR principles. The way to show this is by following certain required processes (see next column) and having a documented ongoing compliance plan.

Personal data:
There are new rules which employers must follow so the employer has told the employee of the legitimate purpose it has for using the data eg holding bank account details to pay the employee to comply with the employment contract.

Right to be forgotten:
There is a new employee “right to be forgotten” which allows employees to request deletion of their data.

Data Subject’s Rights “Amend it, Delete it, Freeze it”:
The employee has the right to: access data, delete data, restrict the processing of data, ask for incorrect data to be rectified, transfer data, object to data collection, request human analysis where data is be automatically processed and profiled and the right to know that data is being collected. The Data Subject Access Request procedure has changed to make it fairer to employers but the timescales are shortened to 30 days.  There will be an employee “right to rectification” allowing employees to insist in certain circumstances on making changes to their personal data held by the employer.

Transfer of Data outside the EU: GDPR stops data transfers outside the EU unless certain safeguards are in place and followed.

 

GDPR compliance is not just for 25th May.
Ongoing compliance is equally important to show the Accountability obligation has been complied with. The infographic below explains the types of HR data that organisations collect, and how HR data is typically stored and where it is often outsourced for processing to Data Processors.

Once you have mapped the HR data flow in your organisation, you will be in a position to list your processing activiti
es and risk assess the important areas for your GDPR compliance plan: for example, you can plan the changes you will need to make so that employees receive an additional document called a Privacy Notice explaining how the employer will process their personal data. In effect you are conducting a Data Audit.

Once you have identified where employee HR data is outsourced to be processed (for example to your payroll, pension, healthcare scheme companies) you can plan the new contractual terms with those companies that GDPR requires for processing that data. These organisations may also be joint Data Controllers if they also determine “How” and “Why” personal data is being collected and used.

Employers need the following documents and work-streams as part of their ongoing compliance plan:

  1. Complete the HR Data map
  2. Record the Data Processing Activities eg what type of data is collected and for what purpose and what are the retention periods.
  3. Undertake a Data Protection Impact Assessment where there is likely to be a high risk to employees – considering the likelihood of the risk and also the impact to the employee. For example theft of bank details would be a high risk. It has therefore become best practice process to undertake a DPIA.
  4. Issue new HR Privacy Notices for staff showing what data is being collected, why and for how long, and also explaining if there are special arrangements for sensitive data and if data is being transferred outside the EU.
  5. Conduct due-dilligence/audits on outsourced Data-Processors & negotiate changes to their contracts as necessary.
  6. Ensure new data processing systems are designed to comply with GDPR “Privacy by Design” requirements as systems are upgraded so that data privacy is planned to be included as part of the upgrade.
  7. New Privacy Standard (which updates the current Data Protection Policy) and will be the employers published standard to which, for example, customer and HR personal data is used in accordance with GDPR.
  8. Train Staff on the new GDPR compliance standards.
  9. Appoint a Data Protection Officer who is the guardian of privacy. A DPO is required for public sector authorities and private or public sector employers who are monitoring individuals or processing special categories of data or data relating to criminal convictions in each case on a large scale. Employers can still appoint a DPO even when not required under GDPR eg to show the compliance culture within an organisation and ensure an employee or outsourced supplier is separately looking at privacy and compliance with GDPR.
  10. Pay the annual registration fee to the ICO of £40 (where employer turnover is less than £632,000 or there are no more than 10 staff) to £60 (turnover up to £36m and no more than 250 staff).

We have seen from advising our clients over the last 18 months on GDPR that each organisation has different GDPR compliance requirements and risk areas. Careful thought and analysis is required in steps 1 to 9 above to show that the Accountability obligation has been met.

This is therefore not a comprehensive GDPR compliance list but a very good starting point to speak with us. Get in touch if you need help becoming and staying GDPR compliant.

Ongoing
Employment Status of Workers

The Good Work plan: government proposals in response to The Taylor Review.

To Taylor’s recommendations on employment status of workers, the Government offered no firm commitments, instead proposing a further consultation (one of 4)  to explore the best ways to get better clarity for those on the boundary between employment and self-employment. The consultation also covers certain other Taylor Review recommendations that the Government has neither committed to nor rejected. It also covers issues concerning the definition of working time for the purposes of the national minimum wage (NMW). So it seems unlikely that there wil be any legislative change to employment status tests soon.

The Government did accept many of Taylor’s recommendations in principal, and stated its commitment to:

  1. pursing the quality of work as well as the number of jobs
  2. embracing new ways of working
  3. being amongst the first countries to develop employment rules to reflect the changing world of work
  4. helping enforce workers rights to sick and holiday pay
  5. ensuring all workers including zero hour and causal workers receive basic rights, payslips and terms of conditions of employment from day one, and have a new right to request “more stable employment contracts”
  6. considering a higher rate of national minimum wage for zero hours workers
  7. define “working time” for flexible workers who find work through apps and platforms,  so they know the hours for which they are and should be being paid
  8. boost awareness of the right to request flexible working and encourage take-up of shared parental leave
  9. naming and shaming employers who fail to pay tribunal awards
  10. quadrupling ET fines for employers who have shown malice, spite or gross oversight, to £20,000.

It rejected the Taylor Review’s recommendation on the use of rolled-up holiday pay as unlawful under EU case law.

On a closely related issue, the government has said it will propose employee representation on company boards. As yet there are no real details and again we will report on this as they emerge.

There are similar reports from BEIS and DWP due in late 2018, Spring 2019.

 

May 2018

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Update November 2018

 

 

 

June 2018

 

 

 

 

 

 

 

Oct 2018

Uber to appeal to CA the Landmark  ET ruling
..awaiting decision.

 

Employment Status of workers

Addison Lee v Gascoigne

In May 2018, Addison Lee (AL) lost its appeal to the Employment Appeal Tribunal which upheld an earlier Employment Tribunal (ET) decision that an Addison Lee cycle courier was a worker, not a self-employed contractor. 

The EAT found that once the courier was logged onto the AL app, there was sufficient mutuality of obligation (both sides expected he was available for work, would be provided with it and would carry it out as directed by the AL controller) to establish his status as a worker.

The courier had brought a claim for holiday pay in 2017, arguing that he was a “worker” as defined under “Limb B of the Working Time Regulations 1998”. 

A further EAT ruling against Addison Lee in this later Lang case, confirmed that Lang was a worker because he was continuously logged into the AL app and therefore under their control.

 

Pimlico Plumbers v Smith

In June 2018 Pimlico Plumbers lost is appeal to the highest court in the land when The Supreme Court upheld an earlier Court of Appeal ruling that Mr Smith, a plumber with Pimlico Plumbers was a worker, not a self-employed contractor, and as such entitled to paid holiday and other worker benefits.

Now established as a worker within
the meaning of The Employment Rights Act 1996.  Mr Smith may now bring a case for unfair dismissal.

Uber V Aslam

Uber launches an appeal to the Court of Appeal challenging the landmark ET ruling (in 2016) that the company’s drivers were workers. Both the plumbers and the Uber drivers were found to be workers, rather than self-employed.

This trend of the courts finding for worker status when business are challenged looks set to continue. But each case will depend on the specific facts and the terms made between the individual and the company they work for, (this is important, read the next steps column).

Companies in the “gig” economy, operating through platforms or apps, and those relying on a freelance on-demand workforce, would be wise to plan for these people being workers, with rights to NMW and paid holiday etc.

There  will be more cases, brought from the tax and the employment perspective. For example, delivery company Hermes has for many months been under investigation by HMRC for wrongly classifying its couriers as self-employed and not paying NI, PAYE and the NMW. 

This is particularly important when companies wish to have control over the branding and quality of the service delivered.

 

For employers, the key take away from all this is a caution to consider carefully whether the freelancers or contractors in the business are genuinely self employed, or are they, in fact, workers.

The issue of control, critical in the Uber and the Pimlico Plumbers cases is likely to become even more important in determining worker status.

The more control the business exerts over an individual, including over the quality of service they give and the branding at point of delivery, the more likely that person will be a worker.

In the arrangement between the business and the freelancers, contractors
if the business decides:

  • What they do
  • when they work
  • whether they must accept or can reject work offered

 then these are strong indicators that the freelancer, contractor is in fact a worker.

If on the other hand,  freelancers and contractors have the freedom to choose when they work, whether to take on work or not, and can substitute someone else to do the work in their place, (substitution) these are important indicators of self-employment.

From Pimlico Plumbers V Smith employers should be aware that if a “contractor” is allowed to replace themselves only with another “approved” individual working in the same business, then the “contractor” is likely to be considered a worker.

The ruling in Addison Lee V Gascoigne confirmed the likelihood that when an individual is logged onto / working via an app, this provides enough mutuality of obligation to establish them as a worker.

But, don’t assume that individuals can no longer be self employed, including in the “gig” economy.  (In the Deliveroo case late last year, riders were ruled to be self employed contractors and not workers, in large part because they had the freedom to substitute another to do their work.)

These cases turn on the facts.

Employers need to look at the actual on-the-ground, day to day, arrangement between the individual and the company, rather than relying on what is written in the contract.

Once you know what you have, make time to check and where necessary tighten contractual documents.

With case law marching ahead of the Government’s activity, this area can be a minefield.

If you are in any doubt about the employment status of your people in the business and need help or advice
please get in touch.

 

6th April 2018
Tribunal Compensation Limits

From 6th April 2018 the maximum compensatory award for unfair dismissal rises from £80,541 to £83,682 .

The maximum amount of a week’s pay, used to calculate statutory redundancy payments, and various awards for basic and additional awards for unfair dismissal also rises from £489 to £508.

You will need to use the updated £508 per week gross salary for calculating eg statutory redundancy payments.
October 2018
Childcare Voucher Scheme
The deadline for closing the current Childcare Voucher Scheme to new entrants is extended to October 2018.The Government has been planning to remove the current system of childcare vouchers and introduce a new tax-free childcare scheme. Plans were deferred throughout 2017 to March 2018 and have been deferred again until October this year.
This is so important to working parents. Currently, the childcare voucher scheme can save parents up to £933 on childcare per year.

Eligible parents can have 20% of their childcare costs each year paid by the Government, up to a limit of £2000, or £4000 for a disabled child.Ensure working parents know of the extension to the decline, for the current scheme.

Contact your company Accountants, or payroll department, for advice on setting up a scheme.

Childcare Vouchers & Tax Free Childcare
more information, and
FAQs for employers.

April 2019
Taxation of Termination Payments

The proposed introduction of employer NI contributions on termination payments of more than £30,000 which was due to come into force from 6th April 2018, has been delayed until 6th April 2019.
 

Employment Status of workers

Government consultations following Taylor recommendations
Taylor Review recommendation
All workers (including those in the gig economy) who are neither full employees nor genuinely self-employed should be reclassified in Employment Law as Dependent Contractors. This would mean they are automatically entitled to sick pay, holiday pay, and the minimum wage. If implemented, this reclassification would shore up the rights of those working in insecure roles and lead to greater wage costs for employers.

Government response and proposed consultations

The Government accepted that there was a lack of clarity surrounding the tests for employment status, but  did not take up this recommendation, nor did it provide any solutions on how to achieve greater clarity.

Despite its stated commitment to taking action in this area, including considering legislative options, its position is that these recommended changes to employment status represent the single largest shift in employment status since the Employment Rights Act in 1996.

It was concerned that any action it takes preserves flexibility in the labour market and does not impose any unnecessary burdens on business or adversely impact the ability of those in the labour market to work.

Hence its proposal of further consultation to gain clarity on Employment status for those on the boundary between employment and self-employment.
Options under co
nsideration are:

The Government is launching 3 other consultations on the recommendations made by the Taylor review, seeking views on legislation for:

The changing nature of how we work: in figures

CIPD research estimated that in 2017 there were 1.3 million people, 4% of working adults, working in the “gig” economy and suggested that this figure will continue to grow. 
A more recent CIPD  UK working lives survey of 6000 individuals across a number of sectors, would seem to bear out these figures 

Its difficult to calculate with any certainty the numbers of people on zero hours contracts.  Figures gathered by The Labour Force Survey and the Business Survey figures vary showing between just over 900,000 (LFS) and 1.8 million (BS) people on Zero Hours Contracts.  The The Taylor report in 2017 noted that just under a million people, 2.8% of those in employment, are reported to be on a zero hours contract.
18% of those on ZHCs are in full time education, suggesting the flexibility of such contracts is a benefit to students.

The number of self-employed people has doubled over the past 40 years,
up from 7% of the UK labour market in 1979, to 12% in 1990, and to 16% in 2016.

 

Gender Pay Gap Reporting

The gender pay gap refers to the differences in average pay between men and women across an organisation, or the labour market, over a period of time, no matter what their role is.

It is worked out using most common hourly earnings figures for UK employees: see a simple worked example below.

The gender pay gap is not the same as gender pay inequality or wage discrimination. It doesn’t mean ‘women getting paid less for doing the same work, work rated as equivalent or work of the same value as men:  This right to “equal work for equal pay”  is set out in the Equality Act 2010.
How to calculate a gender pay gap in your orgnisation a worked example from The Legal Partners

For example, Gender Pay Gap reporting may reveal that on average men earn 36.8 % more per hour than women (as in the worked example here).  or that the lowest paid quarter of the workforce is mostly female (which is also the case in our example). If you have more men than women in senior positions within your organisation, the organisation will show a gender pay gap.

 

 

General Data Protection Regulations

Below is an infographic showing an example HR Data map. This shows where HR data typically comes into the organisation, where it is stored, and where it is outsourced for processing.
This is a first step. You will need to decide whether your organisation is a Data Controller or Data Processor. All employers will be a Data Controller of HR personal data when they collect this data from their staff. These terms are used in the infographic so HR professionals can start to see an overview of the HR data collection process and start the GDPR compliance compliance plan.

mapping your HR personal data for GDPR 2018 The Legal Partners

Preparing for the General Data Protection Regulation (GDPR) 12 steps to take now is useful document from the Information Commissioners Office that outlines the 12 steps to take for GDPR compliance and covers customer as well as HR Data and contains further information.

 

 

 

The general employment law landscape and key employment law changes in 2018 mean there is much for employers to get their heads around.  As this article seeks to bring you the nub of the issues and how they might affect your business and HR practices, it doesn’t constitute legal advice, and should not be taken as such. Far better to get in contact if you need help and advice on your particular situation, either by email, or call me directly on 0208 255 1914.

Workplace Mediation, resolving conflict at workWorkplace Mediation has long been gathering momentum, becoming increasingly popular amongst UK companies who now use it as an effective way to resolve disputes at work. Mediation can provide solutions which meet the needs of all parties; its cost effective, fast (90% are resolved within one day), avoids disruption, removes the debilitating effects of unresolved conflict and can pave the way for restored workplace relationships.

 

So what is Workplace Mediation and how can it solve conflict at work?

What is workplace mediation?

In a workplace mediation the mediator, who is an impartial third party, helps 2 or more staff in dispute to attempt to reach an agreement. Any agreement comes from those in dispute, not from the mediator. The mediator is not there to judge the issue e.g. to say one member of staff is right and the other is wrong, or to tell those involved in the mediation what they should do. The mediator is in charge of the process of seeking to resolve the problem but not the outcome. It is for the staff members in dispute to agree the outcome to resolve the dispute. An agreement settling the dispute is then signed by the members of staff. Workplace mediation is often a voluntary process and all discussions are confidential.

Who can use workplace mediation?

Any employer can use workplace mediation. It is regularly used for resolving conflict involving:

It’s difficult for an HR Director, any Senior Manager or indeed the business owner to be seen as neutral in a mediation.  He or she will know the personalities involved and will not be seen as impartial. An external mediator will help show that HR is looking to resolve this dispute without taking sides. The HR Director or Manager also may be involved later in a grievance or disciplinary dispute.

Workplace mediation is not suitable for some situations , for example where a discrimination or whistle–blowing grievance has been raised and it must be investigated. Note that mediation may also not be appropriate for situations that involve sexual harassment which is a serious issue requiring particular handling. For more on this, see our Employer’s guide to handling sexual harassment at work.

When is workplace mediation used?

Common examples of situations where workplace mediation works are:

Workplace Mediation can be used before a formal grievance has been identified or after a formal dispute has been resolved to rebuild relationships

In 2011 CIPD undertook a Conflict Management Survey in which 57% of respondents reported using workplace mediation successfully.

The Legal Partners mediation team has used workplace mediation successfully in the care, IT and professional services sectors and it is very suitable to workplaces where there are communication difficulties within the business and within teams.

What are the benefits of workplace mediation within the business?

Taking a dispute to an Employment Tribunal is now very costly for both employers and employees, and rarely actually resolves the underlying issues that may have caused the initial problem to occur. The Employment Tribunal will give judgement on the employment dispute at the time but will not resolve any underlying workplace situation problems.

Cost savings of using Workplace Mediation

Workplace Mediation can save many organizational costs.

Which organisations already use workplace mediation?

Workplace Mediation is good for the employer and employee, and many major businesses use it:

How can our business start using workplace mediation?

The Legal Partners provide a workplace mediation service to settle workplace disputes to help the busy HR Director.

Our mediation Partner Shân Veillard-Thomas will arrange the confidential mediation process for you and co-ordinate the successful workplace mediation meeting either at your offices or at a neutral venue. To find out more on Workplace Mediation can resolve the workplace conflict your business is facing, make contact on 0203 755 5288.

 

BYOD practical tips for an effective policy The Legal partnersIn this article we highlight the potential risks and benefits for businesses of allowing employees to use their own personal mobile devices (tablets, smartphones, laptops or notebook computers) for business purposes. We talk through the important issues to consider when putting together an effective Bring Your Own Device(BYOD) policy, to maximise the upsides whilst limiting the risks.

Fuelled by the surging use of smartphones, high speed internet services and 4G as well as the growth in remote and flexible working, staff today have come to expect to use their own devices to conduct business. Employers of every size have been quick to adopt a BYOD approach.

 

Although the following figures are from the USA, the BYOD statistics below show impact of BYOD in the workplace and its widespread adoption.

BYOD benefits

BYOD can bring a number of benefits to businesses, including:

BYOD risks

The boom in BYOD has been matched with an upsurge in activity by criminals trying to exploit the data and intellectual property stored on personal mobile devices. The use of personal mobile devices for business purposes increases the risk of damage to a business’s:

Obviously allowing employees to use their own devices to conduct business comes with an increased risk of data breaches, both physical (such as leaving a device on the train) or electronic (such as hacking or malware).

The research cited above showed that even before GDPR came into force, companies and CIOs were well aware of the security implications of a BYOD approach: 61% of respondents in the Syntonic survey viewed mobile devices as less secure than fixed devices such as desktop personal computers, but said that security measures aren’t always consistent. 

 

Ownership of the device

Personal mobile devices are owned, maintained and supported by the user, rather than the business. This means that a business will have significantly less control over the device than it would normally have over a corporately-owned and provided device. But the business remains responsible for protecting company data stored on those personal mobile devices.

 

Issues to consider in a Bring Your Own Device (BYOD) policy

A BYOD policy brings with it unique challenges which employers must address, such as:

The tone of the BYOD policy should be varied depending on whether the BYOD policy is voluntary (and the employer offers an alternative company-owned device) or whether using their own device is the only option available to the employee. If the policy is purely voluntary, then the employer may impose stricter limitations on usage and more stringent monitoring requirements. If employees are required to use their own device for business purposes, then there is likely to be less scope to impose limitations, particularly if there is an associated cost for employees.

 

How to manage the risks associated with a BOYD scheme

To de-risk the business when adopting a BYOD scheme, employers should:

Before implementing a BYOD policy, an organisation should look at the strategic and business case for it, and conduct a privacy impact assessment. In particular, employers should consider:

Securing data stored on a device

Mobile Device Management for BYOD

Mobile Device Management software allows a business to remotely manage and configure many aspects of personal mobile devices. Typical features include:

Monitoring use of a device 

Employers should also consider how, and to what extent, they will have access to and monitor company and personal data contained on employees’ personal devices. Employees have a reasonable expectation of privacy under Article 8 ECHR. Steps should be taken to ensure that company and personal data are segregated on personal devices, and access to personal data by the employer is minimised.

Loss or theft of a device

Transferring data

Departing employees

A business needs to think about how it will manage data held on an employee’s personal mobile device should the employee leave the business.

BYOD and the ‘Always on’ culture

There is increased commentary around the potential negative consequences of remote working and mobile device usage and its impact on employees’ wellbeing as a result of the ‘always on’ culture. Particularly where use of personal devices is voluntary, employers may wish to consider including the optional ‘work-life balance’ sub-clause in any BYOD policy, to help evidence a commitment to their duty of care towards employees and counter claims in connection with, for example, stress-related illnesses from employees.

BYOD and registering employees’ devices

A key aspect of an effective BYOD policy is ensuring that the employer is aware of the data processing activities that are being conducted in respect of company data. To mitigate against the risks of unlawful processing and undisclosed data breaches, employers should require all employees to register their devices with the employer before using it for business purposes. Employers should also take this opportunity to set up the device with appropriate security software, and register it with remote locate and wipe technology in the event a device is lost or stolen.

BYOD and unauthorised access and repairs

There is a risk of data breach if an employee arranges for a device to be repaired by an unknown third party who may be able to access company data. Requiring that all repairs are arranged through the company will allow for greater control over who has access to the device. If this approach is adopted, the company should also meet or contribute to the cost of repairs. Therefore, the company must balance the costs of contributing to repairs against the risks of a data breach.

ICO guidance on BYOD 

The Information Commissioner’s Office has published guidance on bring your own device and the data protection issues for employers who adopt a BYOD approach. The guidance has not yet been updated to take into account GDPR but many of the practical points it makes are still valid and useful. It highlights:

the importance of  having a clear BYOD policy that is regularly audited and monitored for compliance

that staff connecting their devices to the company IT systems fully understand their responsibilities 

that alongside a BYOD policy, employers create and maintain an Acceptable Use Policy (to provide guidance and accountability of behaviour) in order to minimise the risk of unauthorised or unlawful processing of data or the accidental loss or destruction of personal data. 

NCSC guidance on BYOD

The National Cyber Security Centre, part of GCHQ, has published a useful infographic as part of its summary of the key security aspects for large and public sector organisations.

Choose Your Own Device (CYOD) is likely to offer employees an advantage to select one among several enterprise-approved systems and this is predicted to eliminate standardization and security challenges of BYOD system.

This article seeks to spotlight the key issues around BYOD and how adopting a BYOD approach may affect your business and HR practices. 

 

Avoiding workplace claims golden rules The Legal PartnersFollowing the abolition of Employment Tribunal Fees in July 2017, there has been a dramatic increase in the numbers of claims being brought to Employment Tribunals against Employers.The increase, in the region of  90% in the last quarter of 2017, is admittedly from a small base as claim numbers plummeted in 2013 when fees were introduced.

From years of experience working alongside HR Directors and solving thousands of HR problems, we have compiled these golden rules to help you put the business in the strongest position to defend and avoid costly and time-consuming claims.

# Avoid workplace claims by having good employment contracts and keep them up to date

This is a legal requirement. The penalty is up to 4 weeks pay awarded by an Employment Tribunal. Tailor the employment contracts for different staff, for example CEOs and Senior Sales Directors need Restrictive Covenants so they do not poach customers once they leave.

# Tailor your staff handbook to your business

Include all the policies you need to show to staff what is good and bad behaviour. Include for example a Social Media Policy and Data Protection Policy (or Privacy Standard) in your handbook to show what is acceptable and unacceptable use of Social Media and personal data.  Set out examples of misconduct in your disciplinary policy. For more information on this, read our article on how to avoid social media misuse and protect from liability.

# Follow all UK Visa and Immigration rules 

This is so important for the current Tier 2 visa programme to avid fines of upto £20,000.

# Communicate the New Employment Laws fast and first

Communicate new employment laws to your team before they happen and before your team learn of them from other sources. It is of course easy for Staff to be right up to speed on their rights. So be pro-active, it demonstrates that your business is thinking about its people.  A typical example would be introducing and explaining the new GDPR Privacy Notices or Flexible Working policies as they become available. Here is a slideshare which explains flexible working.  
In this article we outline what employers need to do to comply with GDPR.

Employers can take advantage of these changes to prepare policies, communicate and explain these changes to their Staff.
We can keep you and your teams abreast all the new laws on the horizon and what they mean for your business before they come into force. You can subscribe to our newsletter: just click here, or in the footer below.

# Follow your formal procedures (e.g disciplinary/ grievance/ redundancy),  Follow what the business states in the staff handbook and employment contracts

Employment Tribunals generally take a dim view of Employers who don’t follow their own policies. Policies are there to be used. Often an employer who simply starts without planning will get into difficulty. Most employees will obtain their own legal advice and will challenge the policy when possible. It’s critically important to get the process right. If you don’t start the process correctly from the beginning,  it is very difficult to go back and start it again.  Employers can and do earn respect from other staff who see them dealing with an issue properly and fairly in accordance with the policy in the handbook and with employment law.
If employers fail to follow a valid disciplinary or grievance process, an Employment Tribunal can increase the Award by upto 25%.

# Don’t be afraid to use Settlement Offers

At any time employers can make a settlement offer to an employee to leave and receive a reasonable settlement. The employee cannot refer to the settlement offer or any conversations regarding it at an Employment Tribunal. These “protected conversations” and are confidential. There is more know-how in this article which outlines the correct way to make and manage successful settlement offers.

# Avoid workplace claims by using Mediation to resolve staff problems and grievances early

Mediation is a voluntary and informal process where a trained mediator helps the employer and member of staff resolve a dispute.
Long established in family law and in commercial dispute resolution, employers are turning to Workplace Mediation as a cost effective and fast way to resolve issues between colleagues. If unresolved these dipsutes can seriously undermine their own and the employer’s performance and staff morale.
Workplace Mediation can resolve:The benefits of Workplace Mediation The Legal Partners
– personality clashes and employees at loggerheads, including issues between Senior directors and at Board level
– communication breakdowns
– relationship breakdown within a team
– bullying and harassment
– cultural misunderstandings due to different nationalities working in the same workplace.

The HR Director is not involved so remains neutral.  Here is more detail explaining how Workplace Mediation can solve conflict at work and which UK companies already use it extensively.
We offer a fixed price Mediation service, at prices ranging from £950 plus VAT to £2,000 plus VAT depending upon the complexity of the situation. In our experience, effective resolution can usually be gained within a day, albeit an intensive day for those involved. Some follow up support is included and available if this becomes necessary. Mediation is much more cost effective when compared to the expense of an Employment Tribunal Case. The average legal fees of an ET case for the employer are between £15,000 and £20,000.

# Establish a transparent pay, promotion, bonus and share option structure to help avoid equal pay claims and to reward those employees who contribute

Once again, take the opportunity to outline and explain the benefits of these schemes to your teams. Explain the changes to your teams as they occur e.g in overtime and holiday pay, workplace pensions so employers can plan.

Establish enterprise management incentive (EMI) share schemes to share the value creation with key staff.

although the Gender Pay Gap laws only apply to employers with 250 or more staff this principle will influence any employer’s staff when they consider their future prospects.

# Bring an HR specialist onboard and ask us for legal advice

Hire or consult with an HR Director.  Experienced HR s
pecialists see it as their role to help run the business run more effectively.  Give your HR Director authority for all HR issues and make sure he/she is responsible for this area. He/she should update the CEO/CFO and Operational Directors on law changes and the action to take on HR problems so that the business acts consistently and knowledge is shared. We work closely all the time with our HR Directors to make their roles as efficient as possible and together solve HR disputes

# Make it a habit to communicate with Staff in order to avoid workplace claims

It may sound straightforward, but this practice is so often overlooked by employers. When you see a problem developing, talk with your employee(s) on an informal basis at the earliest opportunity.  This stops the dispute escalating into a situation which could result in complicated and time consuming grievance, worse still an Employment Tribunal claim. Remember to keep detailed notes of every conversation however informal.

Even more golden rules to avoid workplace claims

Preventing social media misuse and liability clOur Social Media Legal Toolkit is a simple way to ensure you avoid social media liability and keep your business  out of trouble,to preventing any litigation from social media misuse by employees. It  includes:
Social Media Policy
+
IT & Systems usage Policy 
+
1 hour of our advice or training with your staff to clearly spell out what they must, must not do, something Apple Retail UK and Wetherspoons undertook wisely to their huge advantage when it came to the crunch.  For what happened and to find out practical steps you can take to avoid Social  Media liability, read our article:

For a fixed price of £950 + plus VAT you are ready to protect your business immediately.
To purchase your toolkit, email or call us directly, our details are below.

Exposure through Social Media is rapidly becoming part and parcel of an organisation’s day to day operation. Even if your business isn’t actively on Social Media platforms such as Twitter, Facebook or messaging Apps such as WeChat or WhatsApp, your employees most likely will be.
Most employers get into trouble over, or on social media because they haven’t put policies in place and they haven’t set expectations with staff of what is good and bad behavior online.
Below we’ve put together a 5 point summary of the risks involved and the steps you need to take to avoid Social Media misuse and protect your business from liability.
It provides an overview of the law in this area. Please talk to us for a complete understanding of how it may affect your particular circumstances.

No excuses, just security. Purchase our Social Media Toolkit today.

We’ve created a Toolkit to Using Social Media at work, its designed  to help you put together these policies and controls  – and stick to them – to avoid social media misuse and so protect your business and your employees from liability.
How to avoid social media misuse at work and protect against liabilityOur Social Media Legal Toolkit is a simple way to keep your business  out of trouble  and to prevent any litigation from social media misuse by employees. It  includes:
Social Media Policy
+
IT & Systems usage Policy 
+
1 hour of our advice or training with your staff to clearly spell out what they must, must not do,
For a fixed price of £950+vat you are ready to protect your business.
Purchase your Toolkit today, email us directly or call on 0203 755 5288. 

Avoid social media misuse by staff and protect from liability.

If your staff use :
Social Media (personal and business)
email and
the internet  at work,
If they send work related emails or discuss the workplace on the internet & on Social Media,

you do need to take action to protect the business from social media misuse.

This article will help you:

  1. manage employees use of email, the internet or Social Media – where use is excessive, inappropriate and/or leads to loss of productivity
  2. protect your business against liability for employees actions on Social Media sites
  3. monitor employees use of social networks without infringing their privacy
  4. protect the business when an employee/s leaves. Remember the HMV case when the company’s redudnacy programme was leaked as it was happening on twitter (link) by a social media manager at the company.

Use Social Media and IT & Systems Policies in your Staff Handbook

It is vital to:

1. conduct a Risk Assessment. This will identify:

Who owns the contact information on Social Media eg Linked in?

2. Include policies on the use of

in your Staff Handbook to state what is permitted and what is not permitted usage.
Be clear that if Social Media usage is permitted during lunch time specify that that is the 1 hour period during the employee’s lunch break. Employers have lost cases at Employment Tribunal when they do not clearly specify what these permitted hours are.
3. In your Disciplinary Policies, state that breaches of the IT & Systems policy and/or Social Media policies will be treated as Misconduct or Gross Misconduct depending on the severity. The Apple Retail Store case below,  illustrates how important this is.
These polices allow you to set and send clear expectations of acceptable & unacceptable behaviour around use of Social Media to your teams.

4. Have regular training on how to use Social Media well, for example:

Help your staff understand their digital footprint. A digital footprint is the trail of everything someone has posted, commented on, downloaded, and reviewed on line. This trail of content remains in the public domain, and could affect them and the company they work for. To understand more about digital footprint, read http://www.internetsociety.org/your-digital-footprint-matters
For those who have grown up with social media, and other workers whose familiarity with social media might lead them to sleepwalk through it without understanding the implications, this video courtesy of safeinternetbanking.be can be a useful starting point and wake up call.
Examples of social media misuse and litigation are now very common and becoming more so.  Take two key cases that made the headlines in recent years. A former Wetherspoons employee lost her case (her dismissal by Wetherspoons was held to be fair) because, whilst at work and during work time, she posted  derogatory remarks about customers on her facebook account.  Her privacy settings were not set appropriately and the customers saw these remarks.This was in beach of Wetherspoon’s carefully worded Social Media policy.
In the Crisp v Apple Retail case, Apple Retail defended the case and won because employee Mr Crisp had received a clear, well communicated Social Media policy and training from Apple on what was acceptable and unacceptable online, so his defence failed.  Mr Crisp’s right to freedom of expression under the European Convention on Human Rights was overridden by the harm he had caused Apple by his derogatory comments on FB.

5. Monitor what is happening in Social Media channels.

This is important because if someone, including employees, are badmouthing your company online, you want to know what’s being said about and who is saying it.
Check your company’s ditigal footprint regularly using social media monitoring sites, or google alerts. Google alerts allows you to set up multiple alerts. Set these up independently, one for your name, another for the company name, for the brand, for any key products or employees, another for important keywords etc.Make sure there is someone in the business  to monitor these and gather the reports from the results. Plan who will see the reports, what action is taken if something negative is found; follow though.
According to research undertaken by recruitment firm MyJobGroup.co.uk 40% of UK employees surveyed admit to criticising their employer on social networking sites like Facebook and Twitter. When it comes to Social Media usage, your policy will only be as effective as the follow-up & enforcement you practice.
6. If a potential issues crops up, it is vital to collect the evidence as part of any investigatory phase of a disciplinary procedure. It can sometimes be difficult to find  the alleged derogatory posting on platforms such as  Facebook, Twitter,  so always take a screen grab/screen print, save it  and print a colour copy of the offending posting(s).
Employers have the right to monitor email and Social Media accounts -under the Regulation of Investigatory Powers Act 2000 (RIPA)  – for legitimate purposes eg to investigate wrongdoing. Always refer in the Social Media policy that this may happen.
On the subject of emails,  there is a great deal employees can do to  protect the company from misuse of emails. Read this article for practical suggestions to minimize risks and liability from email misuse.
Social media needs to be carefully considered in your risk management program.
For more advice or to purchase your Social Media Toolkit, email us or call on 0203 755 5288.
 

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This Checklist sets out the key issues every business should consider before entering into a settlement agreement with an employee, and how an when to use settlement agreements. Settlement Agreements used to be called Compromise Agreements. The UK Government renamed them in July 2013 to promote a culture of trying to resolve issues within the company rather than at an Employment Tribunal. For example employers can now use the new Pre-Termination Negotiations which allow an employer to offer a settlement agreement for an employee to leave by following the ACAS Code of Practice on Settlement Agreements under section 111A of the Employment Rights Act 1996. What is a settlement agreement? A settlement agreement is a legally binding agreement between a business and an...>>

Settlement Agreements – What, why how?

This Checklist sets out the key issues a business should consider before entering into a settlement agreement with an employee. A Settlement Agreement is the new name for Compromise Agreements. The UK Government (Department for Business, Innovation and Skills) renamed them in July 2013 to promote a culture of trying to resolve issues within the company rather than at an Employment Tribunal. For example employers can now use the new Pre-Termination Negotiations which allow an employer to offer a settlement agreement for an employee to leave by following the ACAS Code of Practice on Settlement Agreements under section 111A of the Employment Rights Act 1996. What is a settlement agreement? A settlement agreement is a legally binding agreement between a...>>

Are Settlement Agreements the same as Compromise Agreements?

The answer is “Yes”. Settlement Agreements are designed to achieve the same objective as Compromise Agreements. The Government (Department of Business, Innovation and Skills) has renamed Compromise Agreements as Settlement Agreements so identify more clearly what is happening. Settlement Agreements are needed for an employee to waive all their employment rights (eg discrimination and unfair dismissal) in return for a payment from the employer. ACAS has issued its New Acas Code of Practice. The Code became law on 29 July 2013. It explains how negotiations using a Settlement Agreement can be as simpler and cost-effective way to bring an employment relationship to an end. For a settlement agreement to be legally valid the following conditions must be met: (a) The...>>

Settlement agreements

You are a senior or C Suite Executive. Your employer has offered you a settlement for you to leave the business. It is very important to get the right legal advice about your settlement and if necessary your claim, before agreeing to the terms of a settlement agreement. We can help. Our HR Solicitors have specialist expertise negotiating hundreds of settlement agreements with global organisations. We have been helping senior executives get the best exit deal for over 11 years. Read this article which explains what you need to know, to consider and to do next. For immediate advice and help contact us by email or on 0203 755 5288 directly. What is a settlement agreement? A settlement agreement is a legally binding agreement between you and your employer. In the agreement you agree to settle your...>>
tips for importing goods from China

Importing from China, legal advice for UK companies

If your business is already importing from China 中国, or considering Chinese imports, 中国进口, you will want to ensure the process, and the relationship with your Chinese suppliers, goes smoothly right from the beginning. Stories of lost sales and key promotions unfulfilled due to a slip up at the Chinese factory are common and can make companies cautious of taking the first step. Here are some key tips and useful practices to adopt with your Chinese suppliers, to ensure that your goods arrive as expected, on time, and in the right quantity, consistently. We’ve included some front line advice on what to do if problems do arise. These tips we presented to UKTI’s China market experts last year, and we are...>>

Settlement Agreements – What are they, why use them and how to negotiate them?

This Checklist sets out the key issues a business should consider before entering into a settlement agreement with an employee. A Settlement Agreement is the new name for Compromise Agreements. The UK Government (Department for Business, Innovation and Skills) renamed them in July 2013 to promote a culture of trying to resolve issues within the company rather than at an Employment Tribunal. For example employers can now use the new Pre-Termination Negotiations which allow an employer to offer a settlement agreement for an employee to leave by following the ACAS Code of Practice on Settlement Agreements under section 111A of the Employment Rights Act 1996. What is a settlement agreement? A settlement agreement is a legally binding agreement between a...>>

Redundancy – why must a business offer alternative employment?

Businesses that make redundancies have a duty to look for alternative employment for any potentially redundant employees. A dismissal is likely to be unfair if, at the time of the dismissal, the business did not consider whether any suitable alternative employment existed within its business. This business briefing sets out the key issues a business needs to consider. Extent and duration of the search A business is not obliged to create alternative employment for redundant employees where none already exists. However, the business should make a thorough search for alternative employment and document that search. This will enable the business to show the steps it has taken if it has to produce evidence in defence of an unfair dismissal claim....>>

Redundancy Checklist

This redundancy checklist summarises the key issues that a business should be aware of when dealing with a redundancy situation. When can a redundancy situation arise? Redundancy encompasses three different types of situation: Business closure. Workplace closure. Reduction of workforce. Collective consultation If a business is making 20 or more employees redundant over a period of 90 days or less, the business must: inform and consult appropriate employee representatives. notify the Department for Business, Innovation and Skills (BIS). An employment tribunal can award up to 90 days’ pay for each employee if the business has not consulted adequately. The business can also be fined for failing to notify BIS. The business should also ensure that it follows a fair procedure...>>

TUPE Checklist

Making the Transfer as efficient and liability free as possible: A TUPE Checklist. When does TUPE apply? TUPE applies to a “relevant transfer”. A relevant transfer can be where: A business or part of a business is sold. Work is outsourced from a client to a contractor. Outsourced services are transferred from the original contractor to another contractor or back to the client (ie in-sourced). A client brings the outsourced services back in-house. Further analysis and advice is always needed to confirm whether TUPE applies or not. Whether TUPE does or does not apply will have significant financial implications on any proposed transaction.   Which rights are automatically transferred under TUPE? Employees transfer to the new employer on their existing...>>

Top 10 Tips for Avoiding Workplace Claims

Here are our top ten tips for avoiding employment tribunal claims. 1. Ensure that contracts of employments are properly drafted and kept up to date. It is a legal requirement that employers provide employees with a written statement of terms no later than 2 months after their employment begins. There is certain information that must be contained in the written statement of terms which employers need to ensure is contained within their contracts. 2. Tailor your staff handbook to your business. It should contain all the policies which set out best practice on how your managers should deal with day to day personnel matters. Use it to communicate employers’ and employees’ duties and obligations within the workplace to avoid misunderstandings....>>
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