Shared parental leave

On 5 October 2015 it was announced that the government intends to extend shared parental leave and pay to working grandparents. The government hopes that the planned change will increase flexibility and choice in parental leave arrangements and support working parents with the costs of childcare during the first year of a child’s life. The government intends to consult on the issue in the first half of next year, with the legislation expected to come into force sometime in 2018.

Research by the government suggests that nearly 2 million grandparents have given up work, reduced their hours or have taken time off work to help their families who struggle with the costs of childcare. The government estimates that grandparents are contributing as much as £8 million each year in childcare costs. The government states that ‘more than half of mothers rely on grandparents for childcare when they first go back to work after maternity leave, and over 60 per cent of working grandparents with grandchildren aged under 16 provide some childcare’.

Did you find our post ‘Grandparents eligible for shared parental leave and Pay in 2018’ useful? Read more on Shared parental leave here

Adverse Weather Policies

Disruption caused by adverse weather conditions can be difficult for employees and employers alike. Employers have to grapple with getting business done with a limited workforce whilst employees face the uncertainty of whether they will be paid if they have to stay at home because of school closures or just aren’t able to get into work.

Employees should ensure that they have back up plans for childcare and travel if they are reliant on public transport but in emergency situations an employee is entitled to take unpaid time off to look after their dependents, for example if their child’s school is closed and there is no other childcare at short notice.

Tips for dealing with Adverse weather conditions

  • Plan in advance by having a clear written adverse weather policy. In the event of adverse weather conditions, will employees be paid if they can’t get in to work, can they make the time up or can they take a day’s holiday?
  • Consider any Health and Safety implications of employees struggling to get to work, but make it clear what you expect from them in terms of getting to work.
  • Consider whether employees can work from home, is your business able to offer remote working with IT so that business disruption is minimised for employees not physically able to be in the workplace?

We can advise you on how to deal with this difficult situation and draft an adverse weather policy tailored to your business needs. Please contact us to discuss further.

Holiday pay for employers

Non-guaranteed overtime must be included in the calculation of holiday pay. An Employment Appeal Tribunal judgment has potentially major implications for employers in respect of both employees and workers by clarifying that:

  • the Working Time Directive (WTD) requires non-guaranteed overtime, ie overtime that the employer is not obliged to provide but which, if the employer offers it, the employee is contractually obliged to perform, to be included in the calculation of holiday pay
  • the Working Time Regulations 1998 (WTR 1998) can and should be interpreted to allow the inclusion of this overtime pay to be included in respect of a worker’s entitlement to the four weeks’ paid holiday (which derives from the WTD) but not in respect of the additional 1.6 weeks’ paid annual leave provided for only in domestic legislation
  • a worker will not be able to bring a claim that an underpayment is part of a ‘series of deductions’ (ie to fall within the more generous time limit provisions for an unlawful deduction from wages claim) where there is a gap between deductions of more than three months — this aspect of the judgment perhaps has the greatest impact as it is likely to significantly limit the extent to which workers can make retrospective claims for any underpaid element of holiday pay (or indeed for unlawful deductions of other types)

Employment Tribunal Fees

From 29 July anyone wishing to make a claim in the Employment Tribunal or lodging an appeal in the EAT will need to pay a fee, unless they are able to obtain an exemption.

Harassment at Work. Employer Guide

There has been much news publicity recently surrounding harassment, particularly on the grounds of disability and sex. According to Macmillan Cancer Support there has been an increased number of employees with cancer feeling discriminated when they return to work.

This is supported by a YouGov survey that shows 37% of employees experience discrimination at work after they have had cancer, with 9% leaving and 13% claiming their employer had failed to make reasonable adjustments. As cancer is classed as a disability, companies need to ensure that they act legally when dealing with such employees.

Also sharing the headlines have been claims of sexual harassment, often with such conduct being ignored by companies and other work colleagues. An employer will often be held responsible for the discriminatory actions of its employees and may also be responsible for discrimination by external bodies such as recruitment agencies if they are acting with the employer’s authority. It is therefore important for an employer to investigate any such allegations that arise and if necessary take the appropriate remedial action.

What is harassment?

Harassment involves unwanted conduct that has the purpose or effect of violating a person’s dignity or creating an offensive, intimidating or hostile environment. It is discriminatory if it is related to the following protected characteristics:

  • Sex
  • Disability.
  • Age.
  • Race (including ethnic or national origin, nationality and colour).
  • Sexual orientation.
  • Religion or belief.
  • Gender reassignment.

Why is it important for employers to know about discrimination law?

Ensuring equality

Discrimination is governed by the Equality Act 2010; its’ purpose is to ensure equality of opportunity at work, to protect employees’ dignity and to ensure that complaints can be raised without fear of reprisal.

Damaging publicity and loss of staff morale

Allegations of discrimination or harassment are likely to create bad publicity for an employer; an Employment Tribunal hearing is held in public, often with the press in attendance in the hope of gathering an interesting news story for publication in local, or even national, media. It is wiser to prevent a claim than to have to manage the consequential fallout after a claim has been made. Discrimination and harassment issues can be highly emotive, and the process may have a negative impact on employee morale.

High compensation payments and expensive litigation

There is no limit to the amount of compensation that an employee can be awarded by an Employment Tribunal in a successful discrimination case. A company also has to factor in the significant management time involved and legal costs, which are usually not recoverable in an Employment Tribunal.

Practical steps employers can take to reduce the risk of an Employment Tribunal claim:

  • Provide staff with employment handbooks, including policies on equal opportunities and harassment, setting out what constitutes acceptable behaviour and what does not.
  • Set up clear procedures for staff to raise concerns and complaints, and for dealing with complaints. Ensure discriminatory behaviour by staff is not tolerated and is dealt with through proper disciplinary measures.
  • Review employment contracts, policies and employee share schemes to ensure they comply with the law.
  • Make reasonable adjustments where this will alleviate difficulties suffered by a disabled employee in the workplace.
  • Accommodate workers’ different cultures and religious beliefs, if possible.
  • Try to accommodate requests for family-friendly hours by employees with childcare or other family commitments, unless refusal is justified.
  • Carry out equal opportunities monitoring but do not use the forms as part of recruitment or other decision-making. Data from the forms should be aggregated and anonymised.

Employee shareholders rejected

The House of Lords has again voted to reject the proposed Employee Shareholder status set out in the Growth and Infrastructure Bill.

The government is determined to press ahead with this scheme and has published some concessions in the hope that the House of Lords will agree; these are:

  • a provision that the employee cannot accept the offer within seven days of it being made;
  • a written statement setting out the rights that the employee is giving up; and
  • a written statement setting out the details of the shares being offered (including whether they are voting or non-voting shares, whether they carry a dividend, and whether they carry a right to a share in the company’s assets if it is wound-up and whether pre-emption rights are excluded).

The government had made some earlier concessions to the original proposals:-

  • a jobseeker who refuses a job on an employee shareholder basis will not automatically forfeit their unemployment benefits; and
  • the first £2,000 of shares given to the employee will not attract income tax.

Regulating Recruitment

The government is consulting until 11 April 2013 on a change to how employment agencies and employment businesses are regulated. The aim is to simplify the current regulations while still maintaining safeguards for work-seekers and hirers. The government proposes to retain, for example, the restriction on charging up-front fees to work-seekers and on charging unreasonable transfer fees to hirers. However, it considers that the recruitment sector should have greater freedom to self-regulate its conduct than under the current regime.

TUPE: consultation on changes

There is currently consultation on a number of proposed changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) to take effect from October 2013. The most significant is the repeal of the regulations relating to “service provision changes”.

Other proposals include:

No obligation to provide employee liability information, but transferors would have to disclose information to the transferee to aid the information and consultation process.
Amending the provisions restricting changes to terms, giving protection against dismissal and giving the right to resign in response to a substantial change in working conditions, in each case to reflect the wording of the underlying Directive and/or ECJ case law more closely.
Providing that “entailing changes in the workforce” includes changes to the workforce’s location.
Enabling the transferee to consult with the transferring employees on collective redundancies prior to the transfer.

Workplace Bullying

Back in 2010 the press were alleging that Gordon Brown has bullied members of staff in Downing Street and Whitehall.

Bullying and harassment in the workplace gives rise to a number of moral and legal implications:

  • An employer may be liable under the discrimination legislation if it fails to protect its employees and other workers from harassment in the course of their employment.
  • The Protection from Harassment Act 1997 may also impose liability on an employer for a course of conduct amounting to harassment by an employee.
  • Employers also have a number of implied contractual duties, including a duty to provide a safe and suitable working environment, a duty not to destroy mutual trust and confidence, and a duty to provide redress of grievances.

Moving the Goal Posts?

Rather than making redundancies, some employers are choosing to retain staff but employ them on a different basis by cutting their pay, hours or benefits and thereby reduce their financial outlay.
This can avoid the loss of talent resulting from redundancies, together with the cost associated with redundancy payments and the future cost of recruitment when business picks up. A survey by the CBI with Harvey Nash has found that a majority of employers are planning a pay freeze for their next pay review (55%), a recruitment freeze (61%) and changing their organisation of working time in order to cut costs (62%). In contrast, 62% of companies surveyed still had their bonus structures in place, although the average value of almost a quarter of bonus schemes had been reduced. However, where changes to employees’ terms of employment are contemplated, the process is not necessarily straightforward and employers need to be aware of the legal issues.

What are the contractual terms?

To change a contractual term of employment without the consent of the employee would amount to a breach of contract. It is therefore vital to identify the terms of the contract. An employee’s terms and conditions of employment may be express, implied or incorporated from other sources. Express terms can be agreed orally or in writing, and are commonly found in offer letters and written contracts of employment. Terms set out in employee handbooks may be contractual, for example, terms relating to
pay and benefits are more likely to be contractual than working rules or policies. A term may be implied into a contract where for example it is necessary to give the contract business efficacy. Examples of implied terms are the duty of mutual trust and confidence between employer and employee.

How can contractual terms be changed?

General flexibility clauses in a contract, purporting to give the employer the right to change any term
of the contract, are only likely to be useful for implementing minor and/or non-detrimental changes.
The safest way to vary employees’ terms (particularly where it is to the employees’ detriment and
especially where it concerns pay and benefits) is by agreement, preferably in writing, however there
are some situations where even agreed variations may be challenged and advice should be sought. Consultation with the affected employees will be required and if the change is to the employee’s detriment, an employee should be given some consideration for the change.

If an employer changes a term of employment without the employee’s consent there will be a breach of contract. Should the employee continue in employment there is a possibility that they will have impliedly agreed to the variation. However, this is a risky strategy. Where there has been a breach of contract, the employee could:

• work under the new terms under protest and claim for breach of contract or unlawful deductions
from wages arising from the changes; or
• resign and claim constructive unfair dismissal, if the breach is sufficiently fundamental. Most changes to remuneration would be considered fundamental; or
• if appropriate, refuse to work under the new terms (for example, if there is a change to hours of work). If an employee refuses to agree to a change, the employer could terminate the existing contract and offer continued employment under the new terms. Provided the employer has served due notice on the employee (or made a payment in lieu of notice) it will not be liable for a wrongful dismissal claim. The employee may, however, have a claim for unfair dismissal resulting from the termination of the existing contract and advice should be sought before taking this action. Finally, employers should ensure that all variations made to terms and conditions are not discriminatory in any way.