April is approaching and with it, come new changes to Employment Law. As well as the proposed usual annual increases to minimum wage, statutory sick pay and statutory family pay, there a number of additional changes to Employment Law, which are coming into force on 6th April this year. It is therefore advisable for employers to spend some time now reviewing the upcoming changes in addition to their current practices, to ensure that they will continue to be compliant come April.

Employment Contracts:

The first change relates to the requirement to supply employees with a statement of their main terms and conditions of employment. Currently, employers have two months to provide the statement to new employees; from April, the statement will have to be provided to not only all new employees, but also all new workers, by their first day of working at the latest. Additional information will need to be included in the statement of terms, which can currently be placed in a separate document.

Agency Workers:

There are also several key changes relating to agency workers. Firstly, the “Swedish Derogation”, a mechanism by which recruitment agencies can pay workers less between assignments than they would earn where they were working an assignment for the client, is being abolished as of 6th April 2020. Any worker whose contract contains a provision allowing this practice will need to be contacted by their recruitment agency by 30th April and told that the provision no longer applies. Agency workers engaged by Temporary Work Agencies should be given a Key Information Document which provides them with information on the type of contract they are on, the rate of pay, the method of payment and by whom they will be paid.

Consultation Rights:

There will also be a lowering of the threshold for employee consultations. Broadly speaking, at present where either 10% of employees or 15 employees (whichever is greater) request that they are consulted on an economic matter or that they be party to negotiations with their employer, the employer will need to set up a consultation agreement and go through a formal process. From April, the required number of employees will fall to 2% or 15 employees, whichever is greater.

Holiday Pay:

A further change will arise in respect to holiday pay calculations. In order to calculate the amount of holiday pay an employee or worker will receive, an employer will usually take the earnings over the past 12 weeks of work and calculate the average earnings over that period. In order to reduce the unfair bias that exists against seasonal workers, the reference period will soon be 52 weeks. This will be more applicable to those employees and workers who work variable hours.

Bereavement Leave:

Additionally, draft Regulations have been produced which introduce a new form of family leave for parents whose child sadly passes away before their eighteenth birthday. This includes children who are stillborn after 24 weeks. Though the Regulations have not yet been enacted, the draft indicates that parents will be entitled to up to two weeks of paid leave at the statutory rates in force at the time, such leave to be taken within 56 weeks of the date of the child’s death.

Taxation of Ex Gratia Payments under Settlement Agreements:

Finally, there will be a few changes to taxation. Firstly, soon all termination payments above £30,000 will be subject to PAYE and National Insurance. Furthermore, the IR35 taxation rules regarding self-employed persons working in the private sector is due to change to reflect the rules currently operating in the public sector.

As you can see, there are multiple changes coming into effect which means this year shall be no less eventful than the last few. This does not take into account the current situation with Brexit, which we hope to have more information on soon.

For advice on how the changes outlined above will affect your business, or help in drafting compliant statements of terms and policies, the talk to Tollers and contact Rebecca List on 01604 258558 or rebecca.list@tollers.co.uk. We’re here for you.

It’s been a long and complex saga, but the day when the UK finally leaves the EU is nearly upon us. On 31st January, the UK and the EU are expected to sign the withdrawal agreement, which will allow the UK to leave the EU, and negotiations into the shape of our future relationship with the EU will commence.

One thing which will be fundamentally important to employers is the rights of an individual to work in the UK. To assist with this, the Government have set up a Settlement Scheme which allows individuals from the EU, EEA or Switzerland to apply for “settled” or “pre-settled” status.

Whether a person can apply for “settled” or “pre-settled” status depends on how long they have been living continuously in the UK. If they have lived here continuously (meaning without a break of more than 6 months in any 12 month period) for a period of 5 or more years at the date they apply, then they can apply for “settled” status. If granted, the individual will have the right to remain in the UK indefinitely and may even be able to apply for citizenship at a later date. If they have been living continuously in the UK for less than 5 years at the application date, then they can apply for “pre-settled” status. This, where granted, gives the individual the right to remain in the UK for a further five years. They can then apply for “settled” status once they achieve the criteria set out above.

Brexit Your Employees Right To Work In The UK

It is important that employers ensure that all their workers who are EU, EEA or Swiss citizens have carried out the necessary steps to ensure that they are remain eligible to work in the UK after Brexit. The deadline for doing so is dependent on what happens next in the negotiations. If the UK cannot agree a deal with the EU regarding the finer points of our future relationship by 31st December 2020, then any individuals who intend to remain working in the UK must have been successful in applying to the Settlement Scheme by this date. If we do agree a future deal, then the date by which individuals will need to have received acceptance to the Scheme will be 30th June 2021. Employers should be mindful of these dates and should prepare themselves to carry out right to work checks with their employees once the applicable deadline has passed.

In the meantime, employers are encouraged to remind their employees and workers of the need to apply for settled status if they are an EU, EEA or Swiss citizen who is intending to remain in the UK after Brexit. This may be a difficult conversation to have for some, so try to ensure that, whilst you have the necessary conversations, you provide an informal and relaxed environment and support to any employee who needs it whilst undergoing this process.

If you need any help on how to manage these chats with your employees or workers, or advice on your obligations to ensure that an individual has the right to work, talk to Tollers and please contact Rebecca List on 01604 258558 or rebecca.list@tollers.co.uk. We’re here for you.

Do your older workers struggle with new technology?  Do your office juniors sit on their smartphones all day?

Those are just a few of the typical age discrimination myths that ACAS are trying to dispel with the release of new guidance on age discrimination in the workplace.

Age Discrimination In The Workplace

The proportion of older workers in the workplace is on the increase; nearly one-third of the current workforce is aged oved 50 and that ratio is set to rise further.  As one of the most prevalent forms of workplace discrimination, is ageism the last taboo?

According to a recent YouGov poll commissioned by the Centre for Ageing Better, more than a quarter of job applicants were put off applying for a job because the advert was ‘aimed at younger candidates’ and invited applicants with ‘youthful enthusiasm’, and almost a third felt that they were turned down for a job because of their age. The experiences of those already employed also make for sobering reading. A third of the employee’s interviewed reported fewer opportunities for training and progression as they have got older and feel that their employers simply don’t see any value in employing older workers.

Age Discrimination Cuts Both Ways

Whilst the evidence may suggest it, age discrimination doesn’t apply just to older workers. Adverts which invite ‘mature applicants’ to apply for job or which insist upon a minimum period of previous experience, and applying pay scales which use length of service for salary progression may all be found to be discriminatory practices unless they can be justified.

Whichever Way You Slice It:

Ageism is bad for business. It damages morale; it frustrates your staff recruitment and retention efforts; it will damage your reputation, and worse yet: it can land you in hot water at an Employment Tribunal.

How To Prevent Age Discrimination

Talk to Tollers, ask us to undertake a review of your employment contracts, your terms and conditions of employment, your equality and diversity policies and your recruitment procedures – particularly your interview and selection criteria – to ensure that these do not disadvantage employees of any age, however unintentionally.  Talk to Tollers we’re here for you.

Sticks and stones may break my bones…and workplace banter could also land you in hot water.

It’s hard to imagine a situation whereby being called a ‘fat ginger pikey’ in the workplace wouldn’t be considered to be harassment, but this was the surprising decision of the Employment Tribunal in the case of Evans v Xactly Corporation Limited (the subsequent appeal judgement can be found here). This case makes for interesting reading for any employer who has ever had to deal with the fallout from workplace banter.

Office Banter Can Lead To An Employment Tribunal

Whilst the Employment Tribunal accepted that on the face of it the comments were certainly demeaning and derogatory and could potentially be discriminatory, they were not held to be so in the claimant’s case. They also found the claimant to be an active participant in a culture of ‘jibing and teasing’ where such banter was considered normal and widely accepted. There was no ‘unwanted conduct’ and in any event, the claimant was not offended by it.

Do Not Ignore Office Banter

However, employers should not see this outcome as carte blanche to ignore office banter, especially where targeted at personal traits or ‘protected characteristics’ such as gender, age, race or disability, however innocuous it may seem.

This particular claimant was unsuccessful because he was a willing participant and not genuinely offended, but the outcome for the employer could have been very different, and here lieth the warning: be wary of accepting workplace culture as justification for offensive or discriminatory conduct. One man’s banter could be another man’s offense.

What You Can Do To Mitigate Office Banter

Communicate your workplace polices to your staff to remind them of the expected standards of behaviour and be seen to be actively managing employees whose behaviour falls below this standard.

Investigate any complaints of harassment or bullying promptly and keep a detailed record of your investigation. Harassment is a subjective measure and intention is largely irrelevant, whereas the context is everything.

Talk To Tollers

Ask us to review your polices on equality and diversity and bullying and harassment, and whilst you’re at it, consider a review of your disciplinary procedures. Talk to Tollers we’re here for you.

More than a year has now passed since the culmination of a battle fought by the UK’s largest trade union, Unison saw tribunal fees abolished, and as expected, there has been a sustained rise in claims brought against employers. The full effect is apparent from the latest tribunal statistics published earlier this month, which show a 165% increase in single claims being lodged.  It is inevitable that this has led to capacity problems at tribunal level, in terms of both increased caseloads and the time taken to process those claims.

More importantly for employers, the power balance has been shifted somewhat. Now that there is no longer a financial barrier to bringing a claim, more employers are likely to face challenges to their working practices and policies together with claims for unlawful wage deductions and minimum wage and equal pay rights, even where the net loss to the employee is small. Inevitably employers will also face an increase in spurious and unsubstantiated claims from peeved employees, both past and present. For the foreseeable future at least, employers are unlikely to find any respite from a new tribunal fees regime.

For HR departments, this will bring about a heavy administrative burden of preparing for tribunal hearings.  With claims taking longer to process through the system, these already-scarce resources will have to be allocated for longer periods.

What about those claims that are essentially ‘out of time’? Whilst it is a theory yet to be tested, these claimants may yet be allowed a hearing, where they can show that the tribunal fees prevented them from taking action within the allotted timeframe; although to what extent the tribunals will exercise their discretion here remains to be seen.

Any employee dismissed after more than two years’ service may be considered a potential threat; after all, there is nothing for them to lose.  Discrimination claims, which require no minimum length of service, and whether or not they hold any merit, are most likely to rise.

What does this mean to you?

Our primary advice for employers who fear becoming a sitting target for disgruntled workers would be to take immediate steps to ensure that their policies and procedures are up-to-date with the most current legislation. Contracts and employee handbooks must provide solid foundations and be tailored to safeguard against the inevitability of a claim.

Management and HR staff should be given adequate training to help them to identify and diffuse any potential concerns at an early stage. Employers finding themselves poorly prepared to deal with grievance and disciplinary issues should seek early advice to minimise the risk of a claim arising, and ultimately, the chances of a claim succeeding.

In the event that a tribunal case cannot be avoided, employers will need to be seen to have taken the administrative element of their working practices seriously if they want to be able to present a clear and convincing defence.

For all employers, especially small or growing businesses with limited time resources and expertise, this can be a challenging and complex process, so Talk to Tollers. We’re here for you.

TUPE or Toupee. What does it mean?

However you pronounce it, TUPE is the widely-used acronym for the Transfer of Undertakings (Protection of Employment) Regulations 2006.  It is the legal framework which safeguards employees’ rights when a business (or a part of it) is transferred from one owner to another, or where there is a change of service provider.  It applies to companies of all sizes, in both the public and private sector.

In practical terms, TUPE is designed to protect the rights of those employees who find themselves being transferred to work for the new employer, or are dismissed as a result of the transfer.

It is a very complex area of law and it is not unusual for employment specialists to be drafted in to assess whether the TUPE regulations apply to a particular set of circumstances.

The most common triggers of TUPE are

The employees of the old employer automatically become employees of the new employer at the point of the transfer. The new owner essentially steps into the shoes of the old owner. Temporary staff, workers, independent contractors and the self-employed do not transfer, however.

Existing contracts and terms of employment, such as salary, job title, bonus and holiday entitlement and sick pay provisions should remain unchanged. Trade union recognition and collective agreements are transferred with the affected employees. Any existing period of service will also count towards an employee’s continuous employment with the new employer.

Certain duties and liabilities are also transferred to the new employer, including any outstanding disciplinary and grievance affairs, ongoing employment tribunal claims, the obligation to meet any agreed pay increases and any collective agreements that are in force at the time of the transfer.

There is a notable exception to these obligations, however; occupational pension schemes need not continue on the same terms, although a minimum level of pension provision must still be offered. These requirements vary for the acquisition of privatised companies, and for outsourcing by government organisations.

Dismissal as a result of the transfer is deemed ‘automatically unfair’ except for a limited number of qualifying reasons; put simply, where the dismissal is for either an ‘economic, technical or operational’ (‘ETO’) reason requiring changes to the workforce, and which is unconnected to the transfer. Similarly, any changes to the employees’ contracts or terms of employment must be for an ETO reason and agreed by both the old and new employers, unless the employees’ contracts already provide for such changes to be made.  As an aside, these provisions are indefinite; there is no set period of time after which it will be ‘safe’ to implement changes to new employees’ contracts so as to harmonise them with those of the existing employees, without the risk of a connection to the transfer being established.

All things considered, TUPE is not a cast-iron guarantee of job security, and any employee who objects to the transfer will be deemed to have resigned as from the date of the transfer. However, there would be no entitlement to statutory redundancy, notice pay, or to claim for unfair dismissal.

Employers should inform affected employees about a TUPE situation and in some cases, early consultation with any affected employees of both companies is also carried out.

Are your future plans for your business affected by TUPE? Do you want to know more about it and what it means to you? If so, please Talk to Tollers. We’re here for you.

In this article, we return once again to the entitlement of a sleep-in care worker to be paid the National Minimum Wage.

You may have read my earlier article on whether carers are being paid enough to sleep in work; if so, you will be familiar with last year’s Employment Tribunal finding that carers who work sleep-in shifts at a client’s residence were entitled to receive the National Minimum Wage for that shift, even for the hours that they are asleep.

A Court of Appeal ruling has now overturned this decision, declaring sleep-in carers to be merely ‘available for work’ rather than actually working, and therefore not entitled to receive the minimum wage for the entire sleep-in shift; rather, only for the time that they were (and were required to be) awake for the purpose of working.  One important aspect of the finding was that sleep-in carers were ‘expected to sleep’ for much of their shift and had facilities specifically provided for doing so, whilst recognising also that premiums should be paid for those hours that they were called upon to be awake and providing care.

This result has provided much needed clarity over minimum wage entitlement amongst this particular classification of worker and will come as some relief for employers within the care sector, who are already feeling the pinch from cuts to Local Government funding.  Its relevance reaches also to any other employers of workers that are expected to sleep on-site.

What does this mean for you?

You should consider what side of that definition your workers might be found to lie.  Are they expected to sleep for most or all of their shift, with few and infrequent exceptions?  Is there an expectation that they will be awake frequently or at certain times during the shift, e.g. security staff on night patrol duties?

Have you already registered with the Government’s Social Care Compliance Scheme. If so, should you sit tight and make contingency plans for the potential outcome of a further appeal?  The Government are yet to clarify their intentions for the scheme or for any enforcement action being considered by HMRC.

Have you already increased your hourly rate for sleep-in staff?  Are you now considering your prospects for recovering those premiums in light of this latest ruling?

There are a number of questions yet to be answered, in particular, that of a possible appeal to the supreme court. To find out more, Talk to Tollers. We’re here for you.

ACAS have recently published guidance on calculating overtime as part of holiday pay.

Overtime is typically considered to be those hours that are worked over and above contracted hours. It may be voluntary (with no obligation on either the employer or employee to offer or accept overtime); both compulsory and guaranteed (an obligation on both the employer and the employee to offer and accept), or compulsory but not guaranteed (whilst there is no obligation on the part of the employer to offer it, where it is offered it must be accepted by the employee).

Holiday pay is typically calculated by reference to a number of factors, but a distinction is made between those with ‘normal working hours’ and those with ‘no normal working hours’. Ultimately, a week’s holiday pay must reflect a week’s ‘normal pay’.

This includes any regular overtime paid, even where this was offered and/or accepted only voluntarily. At the moment, this only applies to the statutory minimum 4-week annual leave entitlement. There is, of course, no obligation to pay a premium for overtime, but where agreed, it should be set out in your Terms and Conditions of employment, and consideration must also be given to any part-time workers who carry out regular overtime.

What does this mean for you?

Overtime needs to be taken into account when calculating holiday pay. Each case will of course be considered on its own merits, in particular, the determination of what is ‘regular’ overtime and ‘normal pay’, and whether this pattern extends for a sufficient period of time to be considered ‘normal’.  In recent case law, overtime payments made every 4-5 weeks were considered part of ‘normal pay’, although there may be valid arguments against this presumption where overtime is less frequent.

You may need to revisit your procedures for calculating holiday pay and establish some mechanism for incorporating regular overtime payments, and it may also be time for a review of your contracts of employment.

To find out more, Talk to Tollers. We’re here for you.

I am sure that you will have seen my article from February 2018: Are Carers being paid enough for sleep in work? Essentially, as a result of a recent ruling in the “Mencap Case” (Mencap V Tomlinson-Blake), as an employer you are legally required to pay carers that work the “sleep-in” shifts the national minimum wage, which for anyone who is 25 years old or over is currently £7.83 an hour.

What you may not be aware of is that as a result of the decision, sleep in carers should be paid the National Minimum Wage. The HMRC are looking back 6 years and are enforcing any tax payments owing as a result. This is happening regardless of whether or not a claim as been brought against you by an employee. The local authorities are not helping with these back payments, so you will have to pay the bill yourselves.

What can you do?

HMRC launched a voluntary scheme in March this year, which if you register for, means you could delay tax payments until March 2019. However, you will need to show that you have back paid your staff for any outstanding salary as a result of this recent ruling. If you want to take advantage of this scheme, then we recommend that you take advice.

What does this mean to you?

You should be back paying staff where you can. Some companies may not have the funds to foot this bill and this is something that you may need to consider, by looking at making savings through restructuring, or valuing your assets and securities etc. If you think you’re exposed, then please talk to Tollers, to discuss what your options are, we are here for you.

Following a judgment made in Chief Constable of Norfolk v Coffey it was held that discrimination based on a perceived disability could amount to direct discrimination.

The argument put forward in this case related to a police officer that was applying for a transfer to a new office. She had minor hearing loss which was determined to be acceptable when joining the police force after she took a function test. Her request for a transfer, however, was rejected due to the fact that her hearing may deteriorate and prevent her from performing her duties, meaning that ulterior duties and amendments would need to be made. This was determined by the Employment Appeal Tribunal as direct discrimination because even though she didn’t currently have the disability, she was being directly discriminated against based on the belief that it may develop.

This decision outlined how it can be a form of direct discrimination to treat a person adversely due to a perceived belief that they belong to this relevant protected group. It prohibits discrimination on the grounds of a believed disability or future disability, even if the person doesn’t actually have this characteristic but the employer acts on the basis that they do.

This also applies to people applying for jobs and helps to prevent situations were employers aim to avoid their duties to amend the workplace, based on a perception that a disability may become an issue in the future, and using it as an excuse to dismiss the employee or treat them unfavourably.

The reason behind this decision appeared to be to prevent a gap from occurring in the protection of employment law legislation and to avert from unjust working conditions.

What could this mean for you?

Discrimination is a hot topic and is becoming increasingly common due to the recent changes in society, such as the Government cracking down on gender equality and equal pay, as well as changes in the Law to discrimination based on gender re-assignment. This could mean that you need to be even more careful when dealing with employment law issues at work in order to avoid any conflict.

If you feel that this may be an issue you are currently dealing with or you would like some general advice, then please Talk to Tollers we’re HeRe to help.

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