Blog

Mental Health in the Workplace

Over the last few years we have seen a growing need to discuss mental health, and an increase in demand for change in our workplaces.

As part of World Mental Health Day, ACAS released their latest guide:

‘Promoting positive mental health in the workplace’.

Additional online resources are available from ACAS, which employers will find worthwhile. These include:

Dealing with stress in the workplace

Managing staff experiencing mental ill health

Approaching a sensitive conversation regarding mental ill health

With a growing impact on businesses, and those within it, employers need to become more confident in dealing with mental health conversations.. Wellbeing also needs to be high on the agenda to avoid causing poor ill health, loss of staff, and potential tribunal claims.

One recommendation by ACAS is to introduce a new mental health policy. Like all policies, continuous training and implementation is key, to make a difference to the culture of an organisation.  Our recommendations also include mental health champions, mental health first aid training, and leading from the top.

If you would like further support in drafting, or implementing a suitable mental health policy, please do get in touch with Simona Hamblet at simona@shlaw.co.uk

If you are struggling with mental ill health, please talk to a professional. You can also call the Samaritans 116 123 (free) or email them at jo@samaritans.org.uk .

Share

Employment Tribunal Fees – Supreme Court Decision

After many years of solicitors, barristers, employees, trade unions, and other bodies alike, asserting that the introduction of Employment Tribunal Fees prevented access to justice, the Supreme Court has decided today that their introduction was unlawful.

[Scroll down for the latest update].

Unison have led this challenge, through the court system over the years (High Court 2013 and the Court of Appeal 2015), and today they were finally successful in the Supreme Court.

Following the introduction of fees in 2013 there was an approximate 70% reduction in claims.  Many claimants (employees and workers) were dissuaded from pursuing worthwhile claims, particular those on a low income or those facing a greater risk of a long period of future unemployment, by the high level of fees (usually £1200).

Today that has all changed.  In summary what this now means is:

  1. Employment Tribunal Fees, as they stand, have stopped (it may take a few days for the online system to catch up).
  2. It is not anticipated that we will revert to the status of before 2013, where no fees were payable. Instead new regulations are likely to be introduced, with what is suspected to be a new lower fee regime in its place. It has already been suggested by a leading employment barrister that this might include a fee being payable at a later date, such as when the employer (respondent) lodges its defence (ET3).
  3. Previously paid fees will somehow be refunded (approximately £32 million). This will not be an easy challenge, not least, where settlements or orders were made to include compensation from the employer to the employee so to reimburse paid Tribunal fees, or insurance was used to cover the Tribunal fees.
  4. Some employers or workers may seek to argue that they now want to pursue their case, which would normally have been out of time, if they did not do so previously because of the high fees payable.*
  5. Tribunal paperwork and IT systems will need to be rapidly changed!

The next few days, weeks, months, and years will be interesting. However, hopefully we will end up with a fairer justice system for all.

*At the time of writing those cases were being stayed (started by employees but then put on hold by the Tribunal).

UPDATE October 2017  -if you have previously paid Tribunal Fees, and are eligible for a refund, the first of the refunds are now being processed and you can pre-register too.

Further information can be found here.

Image used from Unison press release.

Share

Monitoring Workers’ Emails or Communications and the Right To Privacy

A recent case, linked to personal emails and messages at work, has made it clear that, when considering a workers right to respect for privacy in the workplace, forbidding the use of work computers for personal purposes was not enough to allow the monitoring of email communications.
 
If an employer IS going to monitor workers’ emails, or electronic communications (for example email, messenger, chat, calls), the employer should tell workers this fact.
 
Here (in the case of Barbulescu v Romania), the employee knew it was forbidden to use work computers for personal purposes, however, he had not been told that the employer was monitoring his communications.  It was therefore decided that there had been a failure to strike a fair balance between the employer’s and the employee’s interests, and the employee was entitled to compensation.

Whilst most businesses already have such policies in place, now is a good time to review it, so to ensure it is tailored to your organisational needs.

If you are considering putting one in place, here are a few useful pointers:

Electronic communications policies – Why have one?
Your policy can help:
– set levels of use, acceptable behaviour, and standards
– indicate sanctions for breach, including disciplinary procedures, criminal or civil liability
– reduce potential employment law claims, contractual liability, and loss of productivity
– permit monitoring, to ensure compliance and protect the business
What should we include?
Whilst each business will tailor it to their needs, it is aimed at the setting of appropriate standards of conduct and performance.  Your policy might include:
  • what sites can or cannot be visited (be it social media sites, chat facilities, or inappropriate or illegal sites)
  • when and where personal use is permitted (top tip – do not ban it if some use is acceptable; you won’t enforce it)
  • prohibiting the download of software, or attaching electronic devices, without the consent of your IT department
  • banning the sharing of chain emails or jokes
  • cautioning against misuse of copyright information
  • referring to any other policies, including anti-harassment policies
  • clarfying that emails can contain content that may be referred to in employment, criminal or civil proceedings
  • reminders of confidentiality and data protection obligations
  • information security considerations, such as encryption, passwords, or wifi use
  • rules for removal of equipment, or information, from the workplace

Advice on business email etiquette, and rules, might be useful such as:

  • limiting dissemination of information
  • correct use of to, cc, bcc, and out of office
  • stating that the employer’s standard disclaimer must be used at all times
  • authorisation for transactions or purchases

Monitoring will need to be clearly set out, to include:

  • who, when, why, how
  • responsibility and accountability
  • records, including retention, deletion, access

For further information please also see the Information Commissioner policy at paragraph 3.

Final Tip : Remind employees often!

In addition to ensuring employees have been signposted to any such policy (and you have a record of this, i.e. them signing a document) it is crucial that you also remind employees of the policy regularly.

We have had unfair dismissal cases which would have had a very different outcome, in the employment tribunal, for the employer, had they not regularly reminded employees of their electronic communication policies AND had applied it consistently across employees.

 If we can assist further please email contact@shlaw.co.uk.

Share

Holiday pay continues to be a source of confusion for employers!

As a reminder, when it comes to holiday pay, essentially the background to the original legislation was to ensure holiday was taken, from a health and safety stance. Hence the trend in recent cases is to encourage workers to take their holiday, by ensuring they are no worse off financially during that time.
 
The latest case involved tradespeople and confirms that voluntary overtime, which is normally worked, counts as ‘normal remuneration’ for the purposes of calculating holiday pay (which in this matter included standby pay and call out allowances).
 
In short, if a worker would normally have earned the monies had they had NOT taken leave, then the employer is most likely expected to ensure any holiday pay reflects this.
 
A quick reminder that such decisions apply only to the four weeks’ annual leave entitlement under the Working Time Directive (the additional 1.6 weeks or contractual holiday are not automatically included). However, in reality employers often apply the same approach across all leave, for administrative reasons.
 
As always each situation needs to be decided on its merits. If we can assist further please get in touch.

Share

Settlement Agreements For Employees

What is a Settlement Agreement?

A Settlement Agreement is a legally binding agreement between you and your employer. The basis of the agreement usually reflects a proposal for you to receive a payment, in return for your agreement not to pursue any claims in a Tribunal or a Court. They were previously called a Compromise Agreement.

Do I need legal advice?

Given the seriousness of waiving your legal rights to bring an employment claim, there is a legal requirement that you need a solicitor, certified trade union, or adviser to sign it.

Whilst the legal requirement is to advise on the terms of the agreement, and its effect on your ability to pursue any rights before an employment tribunal, we also want to ensure that it it is reasonable in your circumstances, and takes into account the impact on your future employment.

We will want to explore any potential claims you may have, sometimes clients are unaware of the seriousness of the actions they have been subjected to.

If you want to read about some of our client’s positive experiences, please read these testimonials.

Why do employers use Settlement Agreements?

It is a method to create a clean break between you both, by way of an agreement, with no opportunity for you to pursue any employment claims.

They are used for various situations. Sometimes to shorten a redundancy process, performance or disciplinary procedure, or where you have potential claims arising from a grievance or termination.

Do I have to accept the offer?

There is no requirement to accept the offer, you ought to receive a reasonable period of time for you to consider whether to do so. ACAS recommends 10 calendar days.

If  you are minded to reject the offer, the potential outcome of rejecting the offer can be explored with your solicitor. This may include potential claims for unfair dismissal.

If your employer threatens you with dismissal, before any form of disciplinary process has begun should you reject the Settlement Agreement, this constitutes something referred to as ‘improper behaviour’ and can be disclosed to a Tribunal. There are other circumstances in which a Settlement Agreement might be disclosed to a Tribunal, however, often the negotiations are kept ‘off the record’. Depending on the timing of the offer you may hear these negotiations referred to as ‘protected conversations’ or ‘without prejudice’.

What is a reasonable financial offer?

Payment in lieu of notice

If you are not working all of your notice then you ought to be paid for that period. Depending on your contract, and other circumstances, that payment might be tax free. Likewise, depending on the terms of your contract, it may reflect your basic salary or all of your benefits such as pension contributions, medical insurance, or car allowance.

Contractual payments

Your Settlement Agreement ought to reflect other payments you are due such as accrued holiday, bonuses and commission.

Compensation

A payment of up to £30,000 compensation can be paid without tax being deducted in certain circumstances, it cannot be a contractual payment. We will review your payments to determine whether there is a potential tax payable.

We will also advise you as to whether not, taking into account the situation you are facing, your potential claims, and the financial offering, the offer is reasonable. This might take into account what you could potentially receive if you were to pursue an Employment Tribunal claim.

The Settlement Agreement will state when payment will be made, this is usually between 14-28 days after signing, or when the next payroll date falls.

Where you decide that the settlement figure is low, you may choose to negotiate the terms yourself, or instruct your solicitor to do so. You could receive practical advice on raising a grievance of an appeal.

Future Employment

With the ending of your employment, we want to ensure you also protect your financial position going forward. This might include:

  • an agreed reference
  • negotiating post termination restrictions
  • agreeing announcements
  • ensuring confidentiality (this could be be both ways)

How much will it cost me?

Your employer should expect to pay a contribution towards your legal fees, usually between £350 and £500 (plus VAT), depending on the complexity of your matter and finances. This will usually cover your costs in a straight forward matter. If you decide to negotiate or you decide there is other work you want undertaken, it will be your decision before any additional costs are incurred.

We look forward to supporting and advising you on your exit, and the terms of your Settlement Agreement.

If you have any questions please free to contact Simona Hamblet direct on 01483 670177 or email her on simona@shlaw.co.uk .

Share

Your Settlement Agreement

For some, the receipt of a Settlement Agreement and financial proposal is a welcome relief, for others an unexpected shock.

Either way we fully appreciate that what might be a standard document for solicitors and HR, could be life changing and stressful for you. You want support and full understanding of what you are agreeing to.

We won’t simply take you through the document and its terms.  We will seek to understand the circumstances to ensure that the document’s terms, and the settlement proposal, is reasonable in your circumstances.

If you want to read about some of our client’s positive experiences, here is the link.

The basics of a Settlement Agreement

Settlement Agreements (formerly known as a compromise agreement) are essentially a contract setting out the terms of your leaving, whilst signing away most of your employment rights. It is for this important reason that there is a legal requirement to seek professional advice (such as from a qualified employment solicitor).

The requirements of this advice must include:

  • the terms and effect of the proposed agreement; and
  • its effect on your ability to pursue any rights before an employment tribunal.

However, this isn’t usually a paperwork exercise, it needs proper care and consideration. Having said that, it is also a document we are incredibly familiar with, which means we can reassure you quite quickly if something is customary or unfair.

Beyond the reasonableness of the Settlement Agreement ex-gratia payment, we also look at any impact of the terms of the Agreement, or your Contract, on your future employment.

The advice can be FREE to you. Your employer should pay a contribution towards your legal fees. To allow us to reassure you as to the cost of our working together, it is helpful if you have that information to hand when you call us to make your appointment. We can usually work within the contribution offered.

If you want more detail of the contents of a Settlement Agreement and what to expect please see here.

We look forward to supporting and advising you on your exit, and the terms of your Settlement Agreement.

If you have any questions please free to contact Simona Hamblet direct on 01483 670177 or email her on simona@shlaw.co.uk .

Share

Your Settlement Agreement

We know that during December many employees find themselves being given a Settlement Agreement.

There is always a debate, when acting for employers, whether to give the difficult news before Christmas (and potentially spoil it), or after Christmas, when there has been a large financial spend.

One of Simona Hamblet’s specialities is advising individuals and executives on Settlement Agreements.

We fully appreciate that whilst this might be a standard document for solicitors and HR, this could be life changing and stressful for you. Not least at this time of year!

Simona won’t simply take you through the document and its terms. She will want to hear what has happened to you, so to make sure you are being treated fairly. You will be looked after.

If you want to read about some of our client’s positive experiences with Simona, here is the link.

 

The basics of a Settlement Agreement

Settlement Agreements (formerly known as a compromise agreement) are essentially a contract setting out the terms of your leaving, whilst signing away most of your employment rights. It is for this important reason that there is a legal requirement to seek professional advice (such as from a qualified employment solicitor).

The requirements of this advice must include:

  • the terms and effect of the proposed agreement; and
  • its effect on your ability to pursue any rights before an employment tribunal.

As already mentioned we know that this isn’t usually a paperwork exercise. It is a big change in your life, for whatever reason, and needs proper care and consideration.

Having said that, it is also a document we see everyday, which means we can reassure you quite quickly if something is customary or fair.

Your employer should pay a contribution towards your legal fees. To allow us to reassure you as to the cost of our working together, it is helpful if you have that information to hand when you call us to make your appointment. We can usually work within the contribution offered.

We look forward to supporting and advising you on your exit and Settlement Agreement.

If you have any questions please free to contact Simona Hamblet direct on 01483 670177 or email her on simona@shlaw.co.uk .

Share

The government has now announced details of its plans to restrict the use of Tier 2 visas for sponsored skilled workers in a series of measures designed to make it more expensive for businesses to bring in workers from overseas.

From 24 November, the minimum salary for new hires of experienced workers in Tier 2 (General) will be £25,000pa, from the current £20,800pa, but this figure will rise to £30,000pa from April 2017. Exceptions apply for some public sector workers until July 2019. Some other changes to Tier 2 (General) include preventing students from switching into that route if they obtained their UK qualification through supplementary studies, rather than as their main studies.

The Skills Transfer ICT route, which allows workers to be transferred to the UK to up-skill, is being closed from 24 November. The short-term ICT category, under which companies have been able to send group employees to the UK for up to 12 months on a salary of at least £25,000pa is being phased out, with the minimum salary increasing to £30,000pa for now, but the route being removed altogether from April 2017. Intra-company transferees will need to be paid at least £41,500pa to qualify for an ICT visa from April 2017.

These changes were first announced in March 2016 as the government response to a report on Tier 2 reform by the Migration Advisory Committee, but the detail of how these changes will work has been eagerly awaited since then. Also awaited is confirmation that the £200 per person per year Immigration Health Surcharge will apply to intra-company transferees, a change that has been announced but not yet implemented.

There is a silver lining for employers of graduates though: those using the Graduate Trainee part of Tier 2 will be happy to be able to sponsor up to 20 trainees per year instead of 5, and the minimum salary for that route is reducing to £23,000pa. Long term assignees will also be comforted by the knowledge that they will be able to stay in the UK for up to 9 years if their salary is at least £120,000pa, reduced from the current £155,300pa figure.

These are not the only changes, however, these are key ones for employers.

If you need further advice on this or any other business immigration matter please contact Helen Smith, solicitor on helen.smith@northstarlaw.co.uk

 

Share

Business Immigration : If you have employees on assignment to the UK, your tax liability is an important consideration.

With the risk of overpaying tax or falling foul of non-compliance penalties, all businesses employing or using services of visitors from abroad will want to ensure everything is in place BEFORE the individual arrives into the UK.

Whether your employee is on a secondment to the UK, a regular business traveller to the UK or simply transferring to the UK from an overseas country, it is likely that some form of tax saving can be made if the move is structured correctly and pre-approval is obtained from the UK tax authorities.

Here are our 8 ‘Hot Topics’ for businesses to consider prior to finalising a cross-border move to the UK:

Internationally Mobile Workforce

The 8 areas discussed below encompass tax law, immigration law, contract law, payroll set-up and financial services. It is key that each is given adequate consideration and professional advice sought:

1. Short-term Assignments
• Complete exemption from UK tax if from a country that has a double tax treaty. Where no treaty exists then a payroll obligation should be considered;
• Conditions must be met including being in the UK for less than 183 days and ensuring the UK entity is neither the legal nor the ‘economic’ employer and no payments are made by, or recharged to, the UK entity;
• Keep ongoing review of days spent in the UK of any business travellers into the country and make an initial request to HMRC for the business travellers exemption to apply before the end of the tax year if you have anyone who falls into this category.

2. UK as a Temporary Workplace
• Accommodation, travel and subsistence expenses can be deducted if costs incurred personally;
• Available to those who are in the UK for less than 24 months and where the UK is regarded as a temporary workplace;
• Relief maybe restricted where the assignee is accompanied by other family members or if the accommodation is at greater expense than may be reasonable.

3. Overseas Workdays
• Income relating to days worked outside the UK is not taxed in the UK;
• Available for first three years of residence provided conditions are met;
• Vital that bank accounts are structured correctly prior to arrival to ensure overseas income is not inadvertently remitted to the UK.

4. Foreign Taxes
• Claim a credit for foreign taxes paid overseas where the income has been taxed in the UK but earned overseas;
• Benefit from the tax-free personal allowance by electing to report worldwide income and gains in the UK.

5. Home Leave
• Relief can be claimed for travel costs of visiting home while on assignment in the UK;
• There is no limit to the number of trips that the employee can make per year;
• Relief for two trips per year is also available for the taxpayer’s family;
• Relief is available for up to five years.

6. Foreign Pensions
• Relief can be claimed for employee and employer contributions made to certain foreign pension plans;
• Relief is limited to the same annual limits as a UK approved pension scheme.

7. Shelter Offshore Income
• Non-domiciled individuals can make an election to be taxed on the ‘remittance basis’ of taxation;
• Election can be made for up to 7 consecutive tax years before the remittance based charge is incurred;
• Offshore income is sheltered from UK tax and will not be taxed unless the income is remitted to the UK.

8. Relocation
• Relief for up to £8,000 of qualifying relocation expenses for relocating to the UK;
• Qualifying relocation expenses include expenses of transporting belongings, travelling and subsistence expenses and the cost of insurance during transit;
• Relief is also available for the repatriation.

 

Social Security ‘The forgotten tax’

For assignments to/from either a member of the European Economic Area (EEA) or a country that has a reciprocal agreement with the UK, utilise A1 Certificates of Continuing Liability to avoid an employer liability in the host country and to enable employees to continue to contribute to their social security record in their home country.
For assignments involving non-agreement countries, benefit from the ‘52-week rule’ to avoid cumbersome refund applications.

We would be happy to assist with all aspects of tax relating to immigration. For more support please contact Joanne Kerr or Jim Hadnett at Global Tax Network on 0207 100 2126 . We also have offices in Guildford.

Share