Employer: ‘I’ve told my employee they can’t come back to work, what do I do now?’
Employment law adviser: *Sigh*
The first piece of advice to our reader is…don’t do this! Always take advice before you say anything to an employee that even vaguely suggests they can’t continue working for your business.
In the case of Cosmeceuticals Ltd v Parkin the Employment Appeal Tribunal determined that the statutory definition of the Effective Date of Dismissal is the date that a summary dismissal is communicated to the employee, even where notice ought to have applied and wasn’t given. And in the light of the recent ruling that tribunal fees were unlawful, it’s even more important to follow correct procedures.
In this particular case the employer had concerns over Ms Parkin’s capability in her role. During an informal meeting the employer told her that she would not be able to return to the role she held and made poor attempts to discuss alternative employment for her. She was later put on garden leave and the employer wrote to her, 28 days after the initial meeting, to confirm her dismissal giving notice of four weeks from the date of the letter.
The Employment Appeal Tribunal found that the written dismissal letter giving notice was not the event that terminated the contract. The words spoken by the employer in the first meeting were sufficient to terminate the contract of employment summarily and without due notice. The fact that the employer later attempted to cover up his error by then following due process was irrelevant and the Effective Date of Dismissal occurred on the date of the first discussion.
This concerns advisers for a number of reasons:
This case serves as a sound reminder that employers are best advised to take careful advice on a case by case basis before challenging a problem employee. Once the wrong thing has been said there is nothing your advisers can do to change this. A dismissal can be judged to have taken effect from verbal conversations and attempts to remedy the situation may not work. Timing and approach is everything when it comes to avoiding legal disputes.
On the 25th May 2018 the General Data Protection Regulations (GDPR) will replace the current Data Protection directive. Employers must adhere to these changes and be ready, otherwise they could face fines which, if imposed, could be up to 20 million Euros or 4% of company worldwide annual turnover.
Dot the i's and cross the t's
Employers need to know how the regulations will affect their organisation and are encouraged to put a checklist in place. Key people within businesses need to be made aware of how the law is changing; this article gives a brief summary of some of the changes that will be introduced.
Employers have a requirement to document all personal data held within the company, where it came from and with whom it’s shared.
Privacy notices must be implemented when collecting personal data, explaining the lawful basis for processing it, the period it will be retained for and details on the individual’s rights to complain.
Individuals will also have the right to be informed, the right to access, rectify and ask for erasure of personal data.
No longer will employers be able to charge individuals for Subject Access Requests and requests for information will have to be fulfilled within 1 month.
Under the GDPR individual rights will be reformed depending on the lawful basis for processing their personal data. There are 6 lawful bases and the employer needs to ensure:
Emphasis has been put on consent as individuals must have informed choice and control. The changes also extend to children, giving them special protection, and privacy policies must be clear and easy for them to understand.
Employers must also be aware of their requirements; if breaches occur they’ll be required to report this to the ICO and to the individual(s) concerned.
When does a Data Protection Officer (DPO) need to be appointed under the GDPR?
Under the GDPR, you must appoint a DPO if you:
You may appoint a single data protection officer to act for a group of companies or for a group of public authorities, taking into account their structure and size.
Any organisation is able to appoint a DPO. Regardless of whether the GDPR obliges you to appoint a DPO, you must ensure that your organisation has sufficient staff and skills to discharge your obligations under the GDPR.
Feel the fear and do it anyway
Although this may seem like a minefield, it cannot be ignored. It’s imperative that employers take action by understanding and preparing for the GDPR requirements and must update all their policies and procedures to reflect the changes and ensure they’re compliant before May.
Opsium will provide further advice to employers in the coming months but if you have any questions now, don’t hesitate to get in touch.
April heralds Easter weekend, birthdays for the star signs Aries and Taurus and of course, the annual increase to the National Living Wage and National Minimum Wage.
Current and increased rates
The below rates are for the National Living Wage and the National Minimum Wage. The rates change every April.
As the rate increases are linked with age, it’s vital to keep an eye on whether employees are tripping into a new bracket during the course of a year, especially if you have a young workforce. Implementing a system to help you flag these changes will help enormously.
If you realise you haven’t been paying an employee the correct minimum wage then you need to work out the difference and pay any arrears immediately. If you are unsure, the Gov.uk site has a calculator which can help you check any existing rates of pay as well as calculating what you should be paying any future employees.
To ensure you are complying with the letter of the law, it’s also worth checking you understand what counts as working time, as it may not always be as clear cut as you think…
What counts as working time?
For all types of work, including time spent:
Don’t include time spent:
You can find examples on the Gov.uk website or if you need further information or advice, get in touch.
Following the latest scandal which has spread from Hollywood to Westminster, sexual harassment is again plastered over the front pages of the papers and trending on social media, it seems timely to create a Sexual Harassment Policy.
Despite having Equal Opportunities within the workplace since the ‘70s, it has been proved time and time again that gender hypocrisy still exists within the workplace.
Sexual harassment can impact greatly on the victim’s emotional and mental health, leading to a loss of self esteem. For the majority of people, work is where you spend most of your time and, to victims, it can feel like there is no escape from the perpetrator.
There have been calls for a dedicated legal process to deal with Sexual Harassment within the workplace in addition to the current Equality Act 2010 to support vulnerable employees (both men and women).
Having a good policy can help employees raise these concerns, rather than going on long term sick as a first response. This article aims to help small businesses to consider what could be included in a Sexual Harassment Policy (SHP).
Encouraging staff to be open and bring claims forward
Ensure your SHP is clear that any allegations will be looked into fairly and that the employee raising the claim will not be discriminated against as a result.
Who can the allegation be raised to?
In the usual grievance process, an employee often has to raise a grievance with their line manager. However, given the sensitivity of such allegations, the SHP can be more lenient and encourage employees to seek guidance from a trusted manager or senior colleague. Making the process easily accessible will help remove barriers, enabling victims of harassment to come forward.
Can the employee remain anonymous?
Protecting the identity of the employee raising the allegation can encourage them to speak out about Sexual Harassment. This would need to be carefully worded as there may be times when this is impossible given the circumstances. However, withholding the accuser’s identify in the initial investigation stages could help victims make that all important first step.
Often sexual harassment is seen to be a joke, with the victim being categorised as ‘too sensitive’. It is important to remember that a business can be liable for the actions of its employees. Therefore it is important to train managers to prevent sexual harassment, and if not possible, train mangers to handle any accusations with care and compassion.
If a complaint should go as far as a tribunal, how the company responded to complaints will be examined and scrutinised.
Act - even if no complaint has been made
In the absence of the victim coming forward, or even if gossip is going around the office, investigate! The victim may not feel able to come forward for many reasons (being the source of the office gossip won’t help), but that does not mean they are not entitled to a fair outcome.
This will set a precedent for any would be perpetrators and shows that your company has a zero tolerance on sexual harassment.
Follow your Sexual Harassment Policy!
Having a policy is all well and good, but if you do not follow it, it is meaningless.
Sexual harassment is a serious issue that employers may inadvertently be liable for. Having a good policy, and more importantly following this policy, should help protect small businesses from avoidable disruption and legal action. If you would like help to create a Sexual Harassment Policy, or need help supporting an employee who has been a victim of sexual harassment, contact Opsium for further advice.
Within the Working Time Regulations 1998, all employees are entitled to a minimum of 5.6 weeks holiday. Not being organised or planning in advance for annual leave could land an employer in hot water - just ask Ryanair. Ryanair have received widely publicised criticism for not managing employees’ holidays correctly. The impact and final cost of this has not been published by Ryanair, but it has been estimated to have cost over £20million.
The aim of this article is to stop small businesses from falling into the same trap and costing the employer hard earned cash.
Know your employees' contractual terms
Knowing exactly how many holidays each employee is entitled to will help a business with its holiday management. Being aware of any contractual obligations that an employer has committed to regarding holidays will also help. Some contracts guarantee that an employee will have 2 consecutive weeks off per year, or that an employee can give as little as 48 hours notice to take holidays.
Don’t assume that the employee will only have the statutory minimum of 5.6 weeks.
Having a clear holiday policy
Similar to the above point, if the contract is silent on holiday particulars, then having a good policy in place will help with holiday management.
A good holiday policy will provide details on:
Holiday is still considered to be a ‘use it or lose it’ benefit, but if this point is emphasised in a policy it makes it much easier for businesses to enforce.
Keeping an effective log of holidays
Who has taken what and when? Being organised and monitoring how much holiday an employee has taken and when will help. Regularly reviewing who has taken what holidays and proactively contacting employees who have a ‘build up’ of holidays to ensure they book them in should stop an end of year rush.
Remember under the Working Time Regulations 1998, an employer can dictate that an employee takes holiday as long as double the amount of notice is given in relation to the amount of holiday the employee will be expected to take; i.e. if an employer wants an employee to take a 1 week holiday, 2 weeks’ notice should be given.
Don’t be afraid to say no!
An employee has the right to request holidays, but does not have the right to have holidays granted. An employer can, within reason, say no to an employee’s holiday request. If the holiday request does not fall within the holiday policy, or will have a negative impact on the business, an employer does not have to grant it.
Employees should ensure that holidays have been accepted before booking their trips away.
Being organised, knowing your employees’ terms and conditions, having a good, clear policy and sticking to it are all essential to effective holiday management.
As with any policy, being fair and consistent will help everyone with forward planning.
If you need help writing a holiday policy contact one of our Employment Law Consultants on 0161 603 2156.
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