Guides & Checklists

Adverse weather and employee travel disruption

Briefing May 2016

This employment law briefing highlights some practical steps that a business can take to reduce the risk of adverse weather affecting an employee’s travel to work.

What disruptions may prevent employees getting to work?

There are several instances in which employees may be prevented from getting to work by major disruptions. The main examples are:

    • Weather – extreme adverse weather conditions (usually heavy snow and ice) can cause road closures and public transport delays or cancellations.
    • Strikes – industrial action on public transport networks such as trains, buses and tubes can prevent some employees travelling to work and make it a very difficult or lengthy journey for others.
    • Flight cancellations or delays – employees are sometimes delayed returning from holiday, requiring an extra day’s annual leave. However, more significant problems occur when airline industry strikes or other major incidents, such as terrorism, cause widespread delays lasting days or sometimes even weeks.

What are the alternatives if an employee cannot get to work?

Homeworking and other workplaces
Consider whether working from home is an option for some employees. Employees should plan ahead and consider taking work home if disruption is forecast. If the business operates at more than one site, consider sending employees to a more accessible site nearer to their home.

Workplace closure
In some cases, depending on the weather conditions or the number of stranded employees, it may not be economical or even safe for a workplace to remain open. Any employees with contractually guaranteed hours or salary will still have to be paid if they are ready and willing to work, unless the business can rely on contractual terms such as a lay-off clause.

Paid annual leave
The business could offer its employees the opportunity to take the absence as paid annual leave, assuming they have sufficient entitlement remaining.

Time off for dependants
Employees have a right to take a “reasonable” amount of time off because of the unexpected disruption or termination of a dependant’s care arrangements. Bad weather or other disruption might lead to a school or nursery being closed with the result that an employee has to take the day off to look after children in any case.
In these circumstances, a business cannot force the employee to use up their paid annual leave entitlement, and must not subject the employee to any detriment as a result of exercising this right.

Making up the hours
A business could ask employees who do not want to take annual leave or unpaid leave to make up the lost hours on other days. If the business operates a flexi-time scheme or an annualised hours scheme, the terms of the scheme may already allow this sort of solution. Even where there is no such scheme, the business could reach an agreement with its employees over the lost hours.

Time-limited paid leave
While a business may baulk at the idea of giving unlimited paid leave to stranded employees, an alternative is to give limited paid leave, after which employees must either take unpaid leave, make up the lost hours, or agree to count it against their paid annual leave entitlement. For example, the business may limit paid leave to one or two consecutive days’ absence, or (for instance) three days in any year.

Practical steps to help reduce business risk

      • Develop a business continuity plan by analysing the potential risks to the business (and their likely effects), and formulate a strategy to combat them. Plan for worst-case scenarios and the plan should work for more minor disruptions.
      • Given the potential for legal uncertainty, consider including a clause in employment contracts to specifically authorise deductions from wages.
      • Implement a policy setting out how the business will deal with adverse weather and other major travel disruptions.
      • Publicise the policy internally before any likely period of travel disruption, and ensure that all staff and managers are aware of their responsibilities.
      • Decide whether employees will be paid if they cannot make it to work, and ensure any guidance is applied consistently.
      • Consider the employee relations angle. Deducting pay may harm morale, but paying absent employees may also lead to resentment by those who struggle in, unless they feel their efforts have been recognised in some way.

We can help you

Key to this is ensuring that you have the necessary contractual and policy documentation to support your business. We can help draft this. If any issues arise, we can advise and support you. Please get in touch.

We support businesses from around Guildford, Godalming & London.

Bring your own device (BYOD)

Briefing May 2016

This employment law briefing highlights the potential risks and benefits for businesses of allowing employees to use their own personal mobile devices (such as tablets, smartphones, laptops or notebook computers) for business purposes.

What is bring your own device (BYOD)?

Many employees now own personal mobile devices (such as tablets, smartphones, laptops or notebook computers) that can be used for business purposes. Businesses are receiving an increasing number of requests to allow employees to use these devices at work.

BYOD benefits

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

  • Increased flexibility and efficiency in working practices.
  • Improved employee morale and job satisfaction.
  • A reduction in business costs as employees invest in their own devices.

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:

  • IT resources and communications systems.
  • Confidential and proprietary information.
  • Corporate reputation.

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 traditional corporately owned and provided device.

Securing data stored on the device

  • A business is responsible for protecting company data stored on personal mobile devices. Businesses should consider implementing security measures to prevent unauthorised or unlawful access to the business’s systems or company data, for example:
    • Requiring the use of a strong password to secure the device.
    • Using encryption to store data on the device securely.
    • Ensuring that access to the device is locked or data automatically deleted if an incorrect password is input too many times.
  • The business should ensure that its employees understand what type of data can be stored on a personal device and which type of data cannot.

Mobile Device Management

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

  • Automatically locking the device after a period of inactivity.
  • Executing a remote wipe of the device (make sure employees are aware which data might be automatically or remotely deleted and in which circumstances).
  • Preventing the installation of unapproved apps.

Monitoring use of the device

  • If a business wants to monitor employees’ use of personal mobile devices, it must:
    • make its reasons for monitoring clear; and
    • explain the benefits the business expects will be delivered by monitoring (for example, preventing misuse of the device).
  • The business must ensure that monitoring technology remains proportionate and not excessive, especially during periods of personal use (for example, evenings and weekends).

Loss or theft of the device

    • The biggest cause of data loss is still the physical loss of a personal mobile device (for example, through theft or by being left on public transport).
    • Loss or theft of the device could lead to unauthorised or unlawful access to the business’s systems or company data. The business must ensure a process is in place for quickly and effectively revoking access to a device in the event that it is reported lost or stolen.
    • Businesses should consider registering devices with a remote locate and wipe facility to maintain confidentiality of the data in the event of a loss or theft.

Transferring data

BYOD arrangements generally involve the transfer of data between the personal mobile device and the business’s systems. This process can present risks, especially where it involves a large volume of sensitive information. Transferring the data via an encrypted channel offers the maximum protection.

  • Employees should be encouraged to avoid using public cloud-based sharing which have not been fully assessed. Businesses should consider providing guidance to employees on how to assess the security of wi-fi networks (such as those in hotels or cafes).

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.

We can help you

Key to this is ensuring that you have the necessary policy documentation to support your business. We can help draft this. If any issues arise, we can advise and support you. Please get in touch.

 We support businesses from around Guildford, Godalming & London.

Changing terms of employment

Briefing May 2016

This employment law briefing sets out the key issues a business will need to consider when changing employees’ terms of employment.

Why is it important to know the law when changing an employee’s terms?

An employee’s terms will usually alter during their employment (for example, their pay may increase). Most changes will be uncontroversial, but sometimes a business will want to do something that the employee is less willing to accept. In these cases, the business must understand how to make the change legally binding while minimising any possible disruption.

Implementing a change to an employee’s terms of employment

A contract can only be amended in accordance with its terms or with the agreement of the parties. However, not all changes during the employment relationship will require the contract itself to be amended. Some will be changes in practice, rather than in the terms of the contract, and in other cases the contract will allow for the proposed variation. In most cases, it will be good practice to carry out a consultation process before changing any terms of employment.

Will the proposed changes affect the contract?

The business should first decide if its plans involve amending the contract itself. This involves identifying the existing terms of the contract, which may be:

  • Express: terms explicitly agreed between the parties (either orally or in writing).
  • Implied: terms may be implied for a number of reasons, for example through custom and practice.
  • Incorporated: terms may be incorporated into the contract from other sources, for example, terms from a collective agreement agreed with a trade union.

Some terms will not be part of the contract. For example:

    • Benefits that are stated to be non-contractual.
    • “Policies” which merely provide guidance on how the contract will be carried out.

Is there a contractual right to vary the term?

If the proposed change will affect existing terms of the contract, the business will not need to amend the contract if:

      • The existing terms are sufficiently broad to accommodate the business’s proposals.
      • There is a specific right for the business to vary the contract in this way.
      • The contract gives the business a general power to vary its terms.

However:

      • Any ambiguity in the terms of the contract will be construed against the business.
      • Any specific flexibility clauses will be given a restrictive interpretation by the courts and may be limited by an implied term (for example, an obligation to exercise the clause reasonably).
      • General flexibility clauses can probably only be used to make reasonable or minor administrative amendments that are not detrimental to the employee.

Implementing a binding change in terms

If a business’s proposals involve altering the existing contract and there is no contractual right to make such a change, the business can consider the following options.

Express agreement

        • The employee may agree to the business’s proposals orally or in writing (although an oral agreement is clearly more vulnerable to challenge at a later date).
        • For the contractual amendment to be binding, the employee must receive some form of benefit in return. In many cases, the employee’s continued employment will be sufficient, but there may be problems when the change does not have an immediate effect (for example, when the employee’s rights on termination are altered).

Unilaterally imposing the change and relying on the employee’s implied agreement

This strategy is more likely to be effective if there is an immediate practical effect on the employee (for example, a pay cut) and they continue to work without objecting. However, a business should not assume that silence is sufficient to indicate implied agreement, especially if there is no immediate impact on the employee. If the business imposes the change it will be a breach of contract. The employee can:

        • Comply with the new terms but work “under protest” and claim for breach of contract or (if their wages have been reduced) unlawful deductions from wages. Where the change imposed is substantial, the business may be deemed to have dismissed the employee, and therefore the employee may also bring a claim for unfair dismissal.
        • Resign and bring a claim for constructive dismissal, if the change is sufficiently fundamental,
        • Refuse to work under the new terms (for example, where there is a change in duties or hours).

Dismissing and offering re-engagement on new terms

This approach avoids the risks involved in unilaterally imposing the change on the employee. However, as a result, the employee may be able to claim either:

          • Wrongful dismissal, unless the business gives the appropriate period of notice (or makes a payment in lieu of notice).
          • Unfair dismissal, unless the business can establish a potentially fair reason for dismissal and show that it acted reasonably in deciding to dismiss the employee for failure to agree to the change.

A refusal to agree to a change in contracts will usually amount to some other substantial reason for dismissal, provided there is a sound business reason for the change.

We can help you

Key to this is ensuring that you have the necessary contractual documentation to support your business. We can help draft this. If any issues arise, we can advise and support you. Please get in touch.

 We support businesses from around Guildford, Godalming & London.

Dealing with employee grievances

Briefing May 2016

This employment law briefing sets out how a business should respond if an employee raises a grievance.

Why is it important to follow the Acas Code?

It can avoid a potential claim
The Acas Code of Practice on Disciplinary and Grievance Procedures was introduced to help businesses and employees resolve grievances in the workplace. Dealing with a grievance effectively can avoid employment tribunal claims by allowing the issue to be resolved internally.

It can affect the level of compensation

    • If an employee’s claim is successful, but either the business or the employee has failed to follow the Acas Code, the level of compensation awarded can be affected:
      • if the business unreasonably failed to follow the Code, the employment tribunal may increase the employee’s compensation by up to 25%; or
      • if the employee unreasonably failed to follow the Code, the employment tribunal may reduce their compensation by up to 25%.
    • This regime applies to the majority of claims brought in an employment tribunal, including those related to:
      • discrimination;
      • unfair dismissal; and
      • breach of contract.

How should grievances be handled?

The grievance should be raised in writing

        • A grievance can be any concern, problem or complaint an employee raises with the business.
        • If a grievance cannot be resolved informally, the employee should raise it in writing with a manager. If the grievance concerns their line manager, the grievance should be raised with another manager.
        • A failure to raise the grievance in writing does not prevent an employee bringing an employment tribunal claim. However, in these cases, less compensation may be awarded.

The business should hold a meeting and investigate the complaint

        • A meeting should be held with the employee to enable them to explain their grievance and how they think it should be resolved.
        • If the matter needs further investigation, the meeting should be adjourned and resumed after the investigation has taken place.
        • When the meeting is concluded, the business should communicate its decision promptly in writing, including details of any action it intends to take to resolve the grievance.

The employee can bring a companion
An employee has a legal right to bring a companion (a fellow worker or a trade union representative) to a grievance meeting.

The employee has a right of appeal

        • The business should inform the employee they have a right of appeal when the decision is communicated. If the employee is not satisfied with the outcome, any appeal must be made in writing and must specify the grounds of the appeal. If a tribunal claim is brought without first going through the appeal process, any compensation awarded may be reduced.
        • The appeal should, if possible, be dealt with by a manager who has not been previously involved. The employee should be informed in advance of the time and place of the appeal hearing and may bring a companion. The business should communicate its decision promptly in writing.

Handling grievances during a disciplinary procedure

Employees often submit grievances during disciplinary procedures, either regarding the procedure itself or the circumstances leading up to the initiation of that procedure. The business must decide whether to suspend the disciplinary procedure to fully investigate the grievance or, if the issues are related, deal with them both concurrently.

Practical steps businesses can take to improve their grievance procedures

          • Involve employees or their representatives in developing workplace procedures and make sure those procedures are transparent and accessible to employees.
          • Train managers:
            • how to handle grievances effectively;
            • when to involve HR;
            • how to spot potential legal claims.
          • Encourage managers to resolve issues quickly and informally before they get to a formal grievance stage.
          • Allow employees to put their side of the story at a meeting before undertaking any necessary investigation and again before making a decision.
          • Keep written records, including minutes of meetings.
          • Communicate decisions effectively and promptly, setting out reasons.

We can help you

Key to this is ensuring that you have the necessary contractual and policy documentation to support your business. We can help draft this. If any issues arise, we can advise and support you. Please get in touch.

 We support businesses from around Guildford, Godalming & London.

Disability discrimination – reasonable adjustments

Briefing May 2016

This employment law briefing explains what reasonable adjustments are in the context of disability discrimination and identifies when a business may need to make them.

What are the penalties for failing to comply with disability discrimination laws?

Discrimination legislation imposes a duty on businesses to make reasonable adjustments to premises or working practices where a disabled job applicant or employee is placed at a substantial disadvantage. Failing to comply with this duty is a form of disability discrimination. There is no limit to the amount of compensation that can be awarded for a successful disability discrimination claim.

When does the duty to make reasonable adjustments arise?

The duty can arise in three circumstances:

  • Where a provision, criterion or practice puts a disabled person at a substantial disadvantage in comparison with individuals who are not disabled.
  • Where a physical feature puts a disabled person at a substantial disadvantage in comparison with individuals who are not disabled.
  • Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with individuals who are not disabled.

What is a provision, criterion or practice?

The phrase “provision, criterion or practice” is wide ranging and includes:

  • Recruitment criteria.
  • Provisions in the employment contract.
  • Employment policies.
  • Informal practices.

What is a physical feature?

The physical feature must be part of the business premises for the duty to arise. For example:

  • Parking areas.
  • Toilet and washing facilities.
  • Building entrances and exits.
  • Furniture and temporary or movable items.

What is an auxiliary aid?

An auxiliary aid is something which provides support or assistance to a disabled person (for example, a specialist piece of equipment, such as an adapted keyboard or text to speech software).

What is a substantial disadvantage?

Discrimination legislation describes “substantial” as “more than minor or trivial”. It is a relatively low threshold and, therefore, an employment tribunal is likely to find it easy to conclude that a claimant suffered a substantial disadvantage. Whether an employee is placed at a substantial disadvantage depends on the individual facts of the situation.

Taking steps to identify disability

A business is not expected to make reasonable adjustments if it does not know, or could not reasonably be expected to know, that the disabled person has a disability and is likely to be placed at a substantial disadvantage. Reasonable steps should be taken to put a system in place to help the business identify whether individuals are disabled and at a substantial disadvantage. If a business should have known about a disability, for example if it would have been discovered from an occupational health assessment, then the duty to make reasonable adjustments will arise.

What is a “reasonable” adjustment?

Although each situation will be different, there are a number of factors which may be taken into consideration when deciding if the steps a business has taken were “reasonable”, including:

  • Whether the adjustment would actually solve the disadvantage identified.
  • The practicality of the adjustment.
  • The impact of the adjustment on the business as a whole.
  • The financial and other costs of making the adjustment.
  • The size of the business.

It is good practice for the business to ask the disabled person about possible adjustments. It is also advisable to agree any proposed adjustments with that person before they are made.

Adjustments a business may be required to make

The reasonable adjustments that a business may be required to make will depend on the facts of the individual situation. However, examples include:

    • Making adjustments to premises (for example, by widening a doorway or providing a ramp).
    • Providing information in accessible formats (for example, producing instructions and manuals in Braille or on audio tape).
    • Reinstatement (for example, reinstating an employee who resigned while depressed).
    • Transferring a disabled employee to a new role (for example, moving them to fill an existing vacancy).
    • Altering the disabled person’s hours of working or training (for example, permitting part-time working or different working hours to avoid the need to travel in the rush hour).

We can help you

Long term illness and discrimination continues to be a challenging area. If any issues arise, we can advise and support you. Please get in touch.

 We support businesses from around Guildford, Godalming & London.

Disciplinary procedure

Briefing May 2016

This employment law briefing highlights the key issues a business should consider when conducting a disciplinary procedure connected with misconduct or poor performance.

The Acas Code of Practice (Acas Code) was introduced in 2009 to replace the statutory disciplinary procedures. Employers are required to follow the code in disciplinary situations.

Why is it important to follow the Acas Code?

It can avoid a finding of unfair dismissal
The Acas Code was introduced to help businesses and employees deal effectively with issues of alleged misconduct or poor performance. When deciding whether an employee has been unfairly dismissed for misconduct or poor performance, an employment tribunal will consider whether the business has followed a fair procedure. It must also take the Acas Code into account when considering whether an employer has acted reasonably or not.

It can affect the level of compensation
If an employee’s claim is successful, but either the business or the employee has failed to follow the Acas Code, the level of compensation awarded can be affected:

  • If the business unreasonably failed to follow the Code, the employment tribunal may increase the employee’s compensation by up to 25%.
  • If the employee unreasonably failed to follow the Code, the employment tribunal may reduce their compensation by up to 25%.

How should misconduct or poor performance be handled?

Investigate the issues

  • The business must carry out a reasonable investigation of the issue (for example, by conducting an investigatory meeting with the employee under investigation). Any investigatory meeting should not result in disciplinary action without a disciplinary hearing taking place first.
  • If paid suspension is necessary during the investigation, it should be as brief as possible and kept under review. The business should clarify that this is not in itself a form of disciplinary action.

Inform the employee of the issues in writing

  • If, following the investigation, it is found that there is a case to answer, the business should notify the employee in writing of the alleged misconduct or poor performance and its possible consequences in sufficient detail to enable them to respond at a disciplinary hearing.
  • The notification should set out details of the disciplinary hearing, including the time and place of the hearing.
  • The disciplinary hearing should be held without unreasonable delay. However, the business must ensure the employee has reasonable time to prepare their case.
  • Any written evidence (for example, witness statements) should be provided to the employee.

There must be a disciplinary meeting or hearing

  • The business should not make a decision to dismiss or take other disciplinary action without a disciplinary hearing or meeting taking place first.
  • If the employee is persistently unable or unwilling to attend, without good reason, the business is entitled to hold the meeting or hearing in their absence and make a decision on the available evidence.
  • Both business and employee should give advance notice of any witnesses they intend to call.
  • At the hearing:
    • the business should explain the allegations and go through the evidence;
    • the employee should be allowed to set out their case and answer the allegations; and
    • the employee should have a reasonable opportunity to ask questions, present evidence, call relevant witnesses and raise points about any information provided by the business’ witnesses.

Inform the employee of the decision in writing
After the hearing, the decision should be sent to the employee in writing without unreasonable delay. Written warnings should set out:

  • The nature of the misconduct or poor performance.
  • The improvement required.
  • The timescale for improvement.
  • How long the warnings will remain current.
  • The consequences of further misconduct (or failure to improve) within that period.
  • The employee’s right to appeal the decision and the procedure they need to follow to do so.

The employee has a right of appeal

If the employee feels the disciplinary action against them is unjust, they may appeal in writing, specifying the grounds of the appeal.

  • If the employee brings a tribunal claim without first appealing, any compensation awarded may be reduced.

 

Practical steps for businesses to take to improve their disciplinary procedures

  • Involve employees in developing workplace procedures, and make sure those procedures are transparent and accessible to employees.
  • Encourage managers to manage conduct and performance issues quickly and informally before they get to a formal disciplinary stage.
  • Investigate issues thoroughly. Even if the employee has attended an investigatory interview, always hold a disciplinary hearing once all the evidence is available, and allow the employee to put their side of the story before making any decision.
  • Keep written records, including minutes of meetings.
  • Communicate decisions effectively and promptly, setting out reasons.

We can help you

Key to this is ensuring that you have the necessary contractual and policy documentation to support your business. We can help draft this. If any issues arise, we can advise and support you. Please get in touch.

 We support businesses from around Guildford, Godalming & London.

Discrimination and harassment

Briefing May 2016

This employment law briefing sets out the different types of discrimination that can occur within the workplace and highlights practical steps a business can take to help avoid breaching discrimination law.

Why is it important to know about discrimination laws?

Discrimination law is designed to:

    • Ensure equality of opportunity at work.
    • Protect employees’ dignity.
    • Ensure that complaints can be raised without fear of reprisal.

What are the penalties for failing to comply with discrimination laws?

High compensation payments
There is no limit on the amount of compensation that can be awarded.

Expensive litigation
Litigation can involve significant management time and legal costs, which are not usually recoverable.

Damaging publicity
Allegations of discrimination or harassment are likely to create bad publicity for a business. It is better to avoid giving rise to a claim, than to manage a crisis after a claim has been made.

Negative impact on staff morale
Discrimination and harassment issues can be highly emotive and the process may have a negative impact on staff morale.

What areas of working life are covered?

Discrimination law covers all areas of employment, including:

      • Job adverts and the recruitment process.
      • Conduct during employment.
      • Work social events.
      • Job references.

What types of discrimination are prohibited?

Businesses must not discriminate against employees on the basis of:

      • Sex (for example, a business must not offer a male candidate a more attractive health care package than a female candidate for the same post).
      • Gender reassignment.
      • Being pregnant or on maternity leave (for example, a business should not delay the promotion of a female employee because she is on maternity leave).
      • Being married or in a civil partnership.
      • Race (including ethnic or national origin, nationality and colour). For example, it could be unlawful to refuse to promote an employee on the basis that English is not their first language.
      • Disability (for example, a business cannot dismiss a disabled employee simply for taking substantial periods of sick leave, if they are off work because of their disability).
      • Sexual orientation (for example, if a business invites employees’ partners to a social function, the invitation should be extended to same-sex partners).
      • Religion or belief (for example, it may be unlawful to prohibit headwear at work, as this may discriminate against Sikhs who wear turbans for religious reasons).
      • Age (for example, choosing not to interview a candidate because their application suggests they are nearing retirement age is discriminatory).

Protection from harassment

      • Harassment is any unwanted conduct that has the purpose or effect of:
        • violating a person’s dignity; or
        • creating a hostile, degrading, humiliating or offensive environment.

         

      • It is discriminatory if it is related to any of the characteristics listed above. For example, it is important to make sure more junior staff are not belittled or humiliated due to their lack of experience.

Protection from victimisation

A business must not discipline an employee who either:

      • Brings a discrimination claim against the business; or
      • Gives evidence on behalf of a colleague in an employment tribunal.

What are the main defences to a discrimination claim?

Justification
In limited circumstances, an employee’s treatment may not be discriminatory, if it can be objectively justified. For example, a requirement to have excellent written English skills may indirectly discriminate against non-British job applicants, unless the business can show that the aims of the job in question cannot reasonably be met without that requirement.

Occupational requirements
It may be lawful to discriminate if having a particular characteristic is an occupational requirement. For example, a Catholic school may require its religious education teacher to be a Catholic.

The law requires the business to discriminate
There are some instances in which a business may be required by law to do something discriminatory. For example, immigration legislation may require the business to refuse to employ a non-EU job applicant on the grounds of their nationality, even if they are the best qualified person for the job.

Practical steps to take to help avoid breaching discrimination law

      • Provide staff with employment handbooks (including policies on equal opportunities and harassment) setting out what constitutes acceptable behaviour and what does not.
      • Provide training on equal opportunities and harassment. This may help managers:
        • avoid inappropriate questions at interviews; and
        • recognise and deal with harassment at an early stage.
      • Set up clear procedures for staff to:
        • raise concerns and complaints, and
        • deal 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 (for example, by installing wheelchair ramps).
      • Where possible, accommodate workers’ different cultures and religious beliefs (for example, requests for time off to pray should be allowed, unless a refusal can be justified).
      • Try to accommodate requests for family-friendly hours by employees with childcare or other family commitments, unless a refusal can be justified.
      • Undertake equal opportunities monitoring, but do not use the forms as part of recruitment or other decision making.

We can help you

Key to this is ensuring that you have the necessary policy documentation to support your business. We can help draft this. If any issues arise, we can advise and support you. Please get in touch.

 We support businesses from around Guildford, Godalming & London.

Dismissing an employee

Briefing May 2016

This employment law briefing sets out the steps a business should follow when it is considering dismissing an employee.

Why is it important to follow the law when dismissing an employee?

Dismissing an employee for a reason other than one allowed by law, without following the correct procedure or giving adequate notice, may lead to a claim for unfair or wrongful dismissal against the business. Compensation for a successful claim can potentially be substantial. Regardless of whether a claim succeeds, the costs of defending it, in terms of management time and legal costs, may be significant and are not usually recoverable.

Establish whether there are grounds for dismissal

There are several potentially fair reasons for dismissing an employee:

  • Their conduct at work (for example, they have filed a fraudulent expenses claim or persistently arrive late at work).
  • Their inability to carry out their job because they lack the necessary skills required (for example, a sales manager has consistently failed to meet reasonable sales targets despite receiving additional support and training).
  • Their absence on long-term sick leave and inability to return to their job.
  • Their job is redundant (for example, if the business is declining or the workplace is facing closure). Do not use redundancy as an easy alternative to dismissing an employee for poor performance. The “redundant” employee could make a claim for unfair dismissal.
  • Their continued employment would be illegal (for example, the business has discovered that an employee’s immigration status does not permit them to work).
  • They are being dismissed for what is known as “some other substantial reason”, that is something not falling into one of the above categories which nevertheless warrants dismissal, such as where the relationship between the parties has broken down.

Dismissing an employee for any reason other than those listed above will be unfair.

Always follow the correct procedure

  • Even if a business has established a potentially fair reason for dismissing an employee, it must still follow the correct procedure. Failure to do so could lead to a claim for unfair dismissal.
  • Generally, an employee must have completed a qualifying period of service before they can bring a claim for unfair dismissal. The qualifying period is two years.
  • However, certain dismissals are deemed to be automatically unfair and an employee is protected as soon as they start work. These include dismissals connected with:
    • pregnancy;
    • parental leave;
    • requests for flexible working;
    • whistleblowing; or
    • a TUPE transfer.

 

It is possible to dismiss an employee fairly but still be in breach of contract if the business has not given them the correct notice under their contract. A business does not want to take any action that could breach an employee’s contract because:

  • It may lose valuable protections in the contract such as post-employment restrictions (for example, stopping an employee going to work for a competitor).
  • The employee may have a claim for wrongful dismissal in breach of contract (for example, if the business fails to give them their contractual notice period or pay a contractual bonus).

PILON clauses

  • A payment in lieu of notice (PILON) clause is a contractual right that enables a business to pay an employee a lump sum rather than require them to work out their statutory or contractual notice period.
  • Before terminating employment and making a PILON, the business should ensure that the contract of employment they wish to terminate allows for termination in this way. If the contract does not allow for a PILON to be made, then it will probably be a breach of the contract to do so.
  • If a business decides to make a PILON, it must notify the employee that a PILON is being made to them in exercise of the employer’s contractual right to terminate the employment with immediate effect. Simply making the PILON will not be sufficient to bring the contract to an end.

We can help you

Key to this is ensuring that you have the necessary contractual and policy documentation to support your business. We can help draft this. If any issues arise, we can advise and support you. Please get in touch.

 We support businesses from around Guildford, Godalming & London.

Employment status

Briefing May 2016

This employment law briefing explains the significance of the distinction between an employee, a worker and a self-employed contractor and also highlights the legal status of volunteers.

Employee status

An employee is an individual who has entered into or works (or worked) under the terms of a contract of employment. The contract can be expressly agreed (in writing or orally) or implied by the nature of the relationship. To have employee status:

  • An individual must be obliged to do the work personally (rather than being able to send a substitute).
  • The employer needs to be obliged to provide the work and the employee is obliged to accept the work.
  • The employer needs to have some control over the way the employee carries out the work.

Worker status

Worker status is sometimes seen as a “half-way house” between employee and self-employed status. Workers are entitled to fewer statutory rights than employees, but do have some key legal rights, including:

  • Protection from discrimination.
  • Protection against unlawful deduction from wages.
  • Entitlement to the national minimum wage.

Self-employed status

The self-employed enjoy no statutory employment rights (although they may be protected by discrimination law).

What is the significance of the distinction?

Legal protections
Some core legal protections only apply to employees, for example the right:

  • Not to be unfairly dismissed.
  • To receive a statutory redundancy payment.

Health and safety
Employers owe employees statutory health and safety protection. Self-employed contractors may not be covered under these duties, although they will be covered under an employer’s occupier’s liability.

TUPE transfers
Only employees will be automatically transferred to any purchaser of the employer’s business under a TUPE transfer.

Tax
An employer is responsible for deducting tax and national insurance at source (PAYE) from the salary paid to employees. Self-employed individuals are responsible for paying their own tax and national insurance under self-assessment.

Insurance
An employer must take out employer’s liability insurance to cover the risk of employees injuring themselves at work. Self-employed contractors are unlikely to be covered by this type of insurance.

Liability
An employer is liable for acts done by an employee in the course of their employment. This type of liability is unlikely to extend to self-employed contractors.

Legal status of volunteers

The legal status of volunteers is not clear cut, as there is a vast range of different types of relationships, from the purely voluntary to those that are clearly contractual and those in between, which are difficult to define. This ambiguity makes it difficult for organisations taking on volunteers to appreciate any legal obligations that they may owe them.

Practical tips for reducing the risk of a legally binding contract

Organisations can reduce the risk of creating a legally binding contract with volunteers by:

  • Avoiding making payments to volunteers that could be construed as wages. Payments to cover actual expenses should be clearly identified as such and ideally reimbursed against receipts.
  • Removing, or at least minimising, any perks that could be regarded as remuneration.
  • Reducing obligations on the part of the volunteer (for example, give the volunteer the ability to refuse tasks and choose when to work).
  • Avoiding using language that makes the arrangement sound contractual and adopting flexible language, such as “usual” and “suggested”.
  • Treating volunteers fairly. Having clear procedures for dealing with problems and grievances should help reduce the likelihood of disputes with volunteers.

We can help you

Key to this is ensuring that you have the necessary contractual and policy documentation to support the status of the employee. We can help draft this. If any issues arise as to whether someone is an employee, we can advise and support you. Please get in touch.

 We support businesses from around Guildford, Godalming & London.

Hiring an employee

Briefing May 2016

This employment law briefing highlights the key legal issues a business needs to consider when recruiting a new employee.

Before advertising

  • Make sure all staff involved in the recruitment process have had equal opportunities training (and they continue to receive it while working for the business).
  • Draw-up the following documents:
    • a job description which sets out the title and main purpose of the job, the place of the job holder within the business and the main tasks or responsibilities of the post.
    • a person specification which details the experience, know-how and qualifications, skills and abilities necessary for the job in question. The requirements can be split between those that are “essential” for the job and those that are merely “desirable”.
  • Ensure that none of the requirements in either document discriminates against any groups of employees. In particular, consider whether any requirements for specific qualifications, working hours or times, travel, age ranges or dress are necessary for the job in question.
  • Consider whether the job needs to be full-time or whether it is open to part-time, home working, flexible working or job sharing. If a business specifies that the job is full-time, it may need to be able to justify its decision.

The advert

  • Decide whether the job should be advertised internally, externally or both.
  • Consider using specialist publications, websites and agencies to target different communities, ages and sexes.
  • Think carefully when writing the advert. Protection from discrimination because of a protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation) covers all areas of employment, including job adverts. For example, avoid using language that might imply only someone of a certain age would be suitable (for example, “mature”, “experienced” or “young”).
  • Ensure any employees absent from work (including women on maternity leave or those on long-term sick leave) are informed of the vacancy to enable them to apply. Failure to do so could amount to discrimination.

The application

  • Use a standard application form to enable individual applicants’ answers to be directly compared against the selection criteria more easily and help avoid potential unlawful discrimination claims.
  • Draw up a shortlist using the same criteria used in the job description and person specification. Every applicant should be marked against the same criteria to help avoid any potential unlawful discrimination claims.
  • If a business is making redundancies, it must consider applications for suitable vacancies from employees selected for redundancy ahead of external applicants. Women selected for redundancy while on maternity leave are entitled to be offered a suitable alternative vacancy (where one is available) in priority to other potentially redundant employees.

Pre-employment health questions

  • In most cases, a business is prohibited from asking potential recruits questions about their health (for example, businesses should avoid asking questions about an applicant’s sickness absence record).
  • However, there are some circumstances where a business is entitled to ask health-related questions. For example, asking an applicant for a job in a warehouse whether they have any health problems that may prevent them from lifting or handling heavy items. Businesses can also check whether an applicant has any special requirements it needs to take into account when making the arrangements for interview, such as wheelchair access.

The interview

  • Think when and where the interview should take place. For example:
    • check whether the interview venue has access for disabled candidates;
    • holding an interview during a religious holiday could discriminate against applicants from that particular religion; or
    • candidates with children may require the interview to be conducted at a particular time.
  • Ideally, all shortlisted candidates should be asked the same or similar questions to allow answers to be compared and to avoid the possibility of a discrimination claim.
  • Avoid asking questions about a candidate’s personal life unless they are directly relevant to the requirements of the job (for example, it is unacceptable to ask a female candidate whether she plans to have children).
  • Keep a paper trail throughout the process to demonstrate how the business reached its decision to select the successful candidate. This should include:
    • selection criteria;
    • notes on the short listing process;
    • interview questions;
    • notes of panellists’ assessments of the interviewees.
  • It is good practice to provide feedback to unsuccessful candidates if it is requested. A failure to do so could indicate that a decision was based on discriminatory grounds.

The offer

  • Make a written offer to the successful candidate. Consider whether to set a time limit for acceptance and specify that acceptance should be in writing.
  • A business can make the offer conditional on a range of criteria, provided they are not discriminatory. For example:
    • providing satisfactory references; or
    • confirmation that the employee is free to work in the UK or has an appropriate work permit or immigration approval to work.
  • Before making a job offer, ensure the applicant confirms they are not bound by any restrictive covenants from their previous job; otherwise the business could be sued by their former employer. Restrictive covenants are used in employment contracts to protect an employer’s business by restricting the activities of an employee, generally after employment has ended.

The contract

  • Consider whether the contract should be permanent or for a fixed term. If a business decides that a fixed-term contract is appropriate, it may need to justify why it reached that decision.
  • Remember that an employee on a fixed-term or part-time contract should not be treated any less favourably than a permanent employee (for example, they should be allowed access to a company bonus scheme or instead receive an equivalent benefit).

Probationary periods

  • A probationary period can be included in the contract. This will enable the business to assess the employee and vice versa. It also gives it the flexibility to dismiss someone using a shorter notice period of at least one week.
  • Probationary periods typically last between three to six months and can be extended with the consent of the employee at the end of the term (for example, if the employee was sick and the business was unable to adequately assess their performance, it may want to extend the period).

We can help you

Key to this is ensuring that you have the necessary contractual and related documentation to support your business at the recruitment stage. We can help draft this. If any issues arise, we can advise and support you. Please get in touch.

 We support businesses from around Guildford, Godalming & London.

Managing poor performance

Briefing May 2016

This employment briefing highlights the key issues that a business should consider when dealing with poor performance. Failure to follow the correct procedures can have serious financial and commercial implications for businesses, including unlimited damages in some cases.

General good practice to help avoid potential claims

Businesses should follow good management practices to help avoid potential claims relating to a dismissal:

  • Make sure that any employee-related policies and procedures the business has are always followed (for example, the equal opportunities policy, if there is one).
  • Address any issues with employees as soon as they emerge. Generally, an employer’s position deteriorates the longer the delay.
  • Think carefully before sending any emails to employees (for example, never send any aggressive emails as they could be used against the business by an employee in a future claim).
  • In many circumstances an informal meeting with an employee can resolve a problem. However, employees must be made aware that a formal process could be used if an issue remains unresolved. The procedure for formally disciplining an employee is complicated, so take legal advice before starting the process.
  • Keep records of any emails, letters, conversations or meetings (formal or informal) that the business has with employees relating to their performance.
  • Conduct regular appraisals with employees to enable the business to give an honest assessment of their performance and allow them to raise any concerns.
  • Do not give flattering performance reviews if they are not deserved. They could make it more difficult to dismiss the employee for poor performance in the future.
  • Use probationary periods effectively. If the business has any legitimate concerns about a new employee, it may be able to extend the period or dismiss them at the end of it. A business will have to provide at least one week’s notice to dismiss (although it may be more, depending on what the contract says).
  • Employees should not be sidelined, bullied or shunned in order to get them to leave. If an employee can demonstrate that they resigned because of the business’ conduct, they could have a claim for constructive dismissal.
  • Be very careful if stress may be a reason for an employee’s poor performance (for example, they are struggling to cope with an increased or challenging workload). In these circumstances, take legal advice.
  • Fully investigate any claims made by or against an employee before making any decision.
  • Do not assume that the business can dismiss an employee simply because their fixed-term contract has come to an end. The employee may have a claim for unfair dismissal. Unfair dismissal is any dismissal that is not for a fair reason or does not follow the correct procedure.
  • Always take any employee grievances or claims raised against the business seriously. Be particularly careful if an employee has raised a grievance or claim in the past. The business should make sure that any further allegations are dealt with fairly, to avoid the risk of them bringing a victimisation claim. Victimisation is a type of discrimination where someone treats another less favourably because they have made, or that person thinks they have made, a discrimination claim, or have given evidence in connection with a claim.
  • Sometimes, from both a practical and commercial point of view, it is simplest to try to reach a financial agreement with an employee to leave the business. Take legal advice before entering into any kind of negotiation. If an agreement can be reached, to protect the business, the employee should be asked to sign a settlement agreement. A settlement agreement is an agreement, usually in return for a fixed sum of money, in which an employee specifies that they will not bring a claim against their employer.
  • There is no obligation on a business to provide a reference if one is requested. However, if a reference (oral or written) is provided for an employee the business must ensure that it is accurate. For example, a good reference should not be given to an employee that the business has dismissed for poor performance, as this could lead to a claim being brought against the business.

We can help you

Key to this is ensuring that you have the necessary policy documentation to support your business. We can help draft this. If any issues arise, we can advise and support you. Please get in touch.

 We support businesses from around Guildford, Godalming & London.

What to consider when an employee is due back
from maternity leave

Briefing May 2016

This employment law briefing sets out a checklist for businesses to consider when an employee is due back from maternity leave.

As an employer it is useful for you to consider:

  • Changes to workplace or role. Update the employee on any changes that have occurred to her working arrangements or duties during her maternity leave. It is good practice to update the employee even on relatively minor changes, which do not significantly impact on her day-to-day work, such as desk moves or new colleagues. More significant changes, or those which might come as a surprise to the employee, may need to be handled sensitively and the employee may need to be consulted more formally, bearing in mind her right to suitable alternative employment in the event of a possible redundancy situation.
  • Training. Consider whether the employee should be offered (or may be required to undertake) any training. This might be particularly relevant in a professional services environment if there has been a significant legislative or regulatory change. Alternatively, in respect of a more operational setting or role, the employee might need training on any new office systems.
  • Handover. Consider how much handover the employee will require with her maternity cover. Is there going to be any overlap or might it be possible for the employee to meet with her maternity cover prior to her formal return? If the latter approach is to be adopted, this could be arranged as a keeping-in touch (KIT) day.
  • Working arrangements. Ask the employee if she will be coming back on the same contract and give her an opportunity to ask about flexible working. Discuss the process for making a formal request to change her hours or work flexibly, either through the employer’s flexible working procedure or via the statutory right to request flexible working. Depending on when the meeting is taking place, it may be necessary to let the employee know that it might not be possible to implement any change immediately on her return if a request has not yet been submitted. Outline the likely timescale for such a request to be processed.
  • Other needs. Ask the employee if there are any other arrangements she might need on her return to work. She might, for example, need facilities for breastfeeding or expressing milk.
  • Family-related benefits. Outline any benefits the employer offers which might be of interest to new parents. For example, a crèche, childcare vouchers, emergency nanny services.
  • Shared parental leave. If the employee is returning with a substantial period of leave entitlement untaken, discuss whether she may be considering opting into the shared parental leave scheme with a view to taking any further leave before the child’s first birthday.

We can help you

Key to this is ensuring that you have the necessary policy documentation to support your business. We can help draft this. If any issues arise, we can advise and support you. Please get in touch.

 We support businesses from around Guildford, Godalming & London.

Meeting with an employee due to go on maternity leave

Briefing May 2016

This employment law briefing sets out a checklist for businesses to consider when meeting with an employee due to go on maternity leave.

As an employer it is useful for you to consider:

  • Paperwork.  Confirm that both parties have received/issued and understood all the necessary paperwork, including MATB1, notification of dates on which maternity leave starts and ends, and confirmation of SMP/contractual maternity pay.
  • Workload and handover.  Discuss the employee’s workload and the handover process. If maternity cover has been recruited is there going to be an overlap between the two employees for handover purposes? If it has been decided no specific maternity cover is required, how is the work that needs to be covered being split up? Has the employee met with any members of staff who will be taking on work from her? Does the employee need to make handover notes? Has her line manager been updated on the status of her workload and all necessary arrangements made?
  • Annual leave (current holiday year).  Establish whether the employee has any annual leave left for the current holiday year. If she does, does she wish to take it prior to commencing maternity leave? If she does not wish to take all her annual leave before starting Ordinary Maternity Leave, how will the employee’s entitlement be dealt with?
  • Annual leave (accrual during maternity leave).  It is usually advisable to deal with holiday accrued prior to maternity leave and during maternity leave separately so as to avoid any confusion if the employee changes the amount of maternity leave she takes. Establish what the employee wishes to do concerning holiday which will accrue in the holiday year that commences prior to her return from maternity leave. Does she wish to take this holiday before returning to work from maternity leave, so as to extend her period of leave?
  • Status of employment contract and benefits.  Outline the status of the employee’s contract of employment during maternity leave, and her rights and obligations towards the employer. This will include explaining how any bonuses or pay rises which become due during the maternity leave period will be calculated, as well as explaining arrangements for payment of pension contributions. If the employee makes her own pension contributions she should be reminded that she may wish to top these up in order to maintain the same level of contributions when her pay reduces and/or expires. Outline the status of any other contractual entitlements such as use of a company car, gym membership and childcare vouchers.
  • Keeping in contact.  Establish the employee’s preferred method of contact during maternity leave (such as via post or personal email address) and whether she wishes to receive any regular external or internal publications while she is away. For example, copies of industry publications, internal company vacancy lists, company newsletters or bulletins, invitations to work social events.
  • Keeping-in-touch (KIT) days.  Explain any policy that the employer may have regarding the use of KIT days and in particular whether (and, if so, how much) is paid for them. Discuss any specific opportunities which may be coming up and/or which may be of use or interest to the employee. For example, team or company meetings or away days, conferences, training sessions, or specific client work.
  • Shared parental leave. Advise the employee of the availability of shared parental leave if she and her partner meet the eligibility requirements, and ask whether she is considering opting into that scheme (although note that nothing she says at this stage will be binding).
  • Arrangements for return to work.  Advise that the employer will be in touch shortly before the employee is due to return to work to invite them to have a discussion (whether in person or by telephone) about the arrangements for her return to work. This may include updating the employee on any changes that may have occurred to working arrangements or duties during her absence as well as discussing any necessary refresher training that the employee might require.
  • Flexible working. Explain how the employer deals with requests for flexible or part-time working. The employee should be aware that if she wishes to make any request she will need to do so well in advance of her return to work (say, by at least two months) if she wishes any new arrangement to take effect immediately on her return.

We can help you

Key to this is ensuring that you have the necessary policy documentation to support your business. We can help draft this. If any issues arise, we can advise and support you. Please get in touch.

 We support businesses from around Guildford, Godalming & London.

Online and email risks – a note for employees

May 2016

This employment law briefing highlights the risks all employees should be aware of when using email and the internet at work, sending work related emails or discussing the workplace on the internet.

Reputational risks

What you write in emails or on the internet could seriously damage your own or another person’s reputation, you could lose your job and you and your employer could be sued, fined or even imprisoned.

Stop and think before you click

  • Anything written in an email has the potential for public exposure (for example, if the email is forwarded to others).
  • Posting on the internet is essentially making a public statement (for example, when commenting on social media sites, blogs or other electronic forums).
  • Failing to take care about what you write can have serious personal, disciplinary and financial implications.
  • Even if you are emailing or using other forms of online communication in your own time, if you refer to people at work or work related matters, you and your employer could get into trouble.

Emails and internet postings can be used in legal proceedings

  • Emails and internet postings can be used against you or your employer in legal proceedings, disciplinary meetings or other regulatory investigations.
  • Never delete emails relating to a legal dispute or investigation or potential dispute or investigation.

It is very difficult to delete emails and online postings

  • Simply deleting emails or internet postings will not necessarily solve the problem. Forensic IT equipment can still find supposedly “deleted” messages.
  • What you publish online will likely be available for a long time, to be read by anyone, including the company itself, future employers and colleagues.

Do not be hurtful or spread rumours

  • Never send emails or post content online that could be thought of as obscene, racist, sexist, bullying or hurtful.
  • Never lie, exaggerate or make a false or inaccurate statement about another company or person. You could be sued even if an email was only sent to one person.
  • Forwarding an email can be just as serious as writing the original. You could be sued even if the original was sent or forwarded to only one person.

Take care with confidential information

  • Where possible, avoid sending confidential information (such as confidential intellectual property or trade secrets) by email. Take legal advice on how the information can be best protected.
  • Any email containing confidential information should be clearly marked as “confidential”.
  • If you receive an email that contains another company’s confidential material (for example, a company’s trade secrets) and the email was not part of a legitimate business transaction, you should take legal advice immediately.

Do not make a contract by mistake

  • A legally binding contract can be made by a simple exchange of emails.
  • Make it clear if you do not intend your email to be binding.

Do not copy someone else’s work

  • Only use or attach other people’s work to your emails if you have permission or you know it is not protected by copyright or other intellectual property rights (for example, trade mark rights). This includes photographs and music.
  • Do not assume that work you find on the internet is free to use.

Do not send or view offensive or unknown material

  • Monitor what arrives in your inbox, especially if you do not recognise the sender or the title of the email seems odd.
  • If there is a risk that an email may contain a virus, do not open it and inform the IT department immediately.
  • You could be disciplined or even dismissed for forwarding inappropriate emails or accessing inappropriate websites at work. In severe cases it could also be a criminal offence.

Avoid unproductive usage

  • Most businesses allow light personal internet and email usage as long as it does not interfere with your duties. However, excessive, unproductive usage is not permitted and may be treated as gross misconduct.
  • Emails can often be a waste of time. Think carefully before copying someone in on an email, especially if there is a long chain of emails attached.

We can help you

If any issues arise out of emails or other online activity, we can advise and support you. Please get in touch.

 We support businesses from around Guildford, Godalming & London.

Providing a reference

Briefing May 2016

This employment law briefing sets out the key issues a business should consider before providing a reference for an employee or former employee.

Types of reference

A business is most likely to be asked to provide a reference for a prospective employer, although it could be asked to give one in other circumstances (for example, a financial reference for a mortgage application). References can be given on behalf of the business as a corporate reference or in a personal capacity.

Corporate references The business will be legally responsible for the contents of a corporate reference because it is provided on its behalf. A business should implement a policy stating:

  • Which employees or level of management can give a corporate reference.
  • What format the reference should be in (verbal or written).
  • What information the reference can include.

Personal references
A personal reference can refer to work undertaken for the business but it must not be given on behalf of the business. There is always a danger that a personal reference is taken to be a corporate reference, so ensure it is not provided on headed notepaper and does not include the referee’s job title.

Providing a reference

Generally, there is no legal obligation on a business to provide a reference for an employee or former employee and therefore the business is entitled to refuse to provide one. However, the business’s policy on references must be consistent or it could lead to allegations of discrimination. There are some limited exceptions to this rule as set out below.

Discrimination

The business must ensure that a refusal to provide a reference is not discriminatory. A business is not allowed to discriminate on the basis of any of the nine protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Having a clear policy in place about the circumstances in which references will be given will help in defending any allegations of discriminatory treatment.

Victimisation

A refusal to provide a reference may lead to a claim of victimisation if an employee or former employee has:

  • Previously brought discrimination proceedings against the business.
  • Given evidence or information in discrimination proceedings against the business.
  • Made an allegation of discrimination against the business (for example, under the business’s grievance procedure).

Settlement agreements

Settlement agreements often include a term stating that, if requested, a reference will be provided in an agreed form, usually annexed to the agreement. Make sure the business adheres to the agreed wording in these situations and that any oral reference provided does not go further than or deviate from the agreed wording. To avoid problems, ensure the standard wording in settlement agreements includes the phrase:

“subject to any further information coming to our attention which we consider should be included in the reference, we agree to provide a reference in the following terms”.

What information should be included in a reference?

The business owes a duty of care to both the subject and the recipient of any reference it provides. The business must, therefore, take care to ensure the information it contains is true, accurate and fair. A business is not obliged to provide any detail in the reference or for it to be comprehensive.

A reference could simply provide brief factual details of the start and finish dates of employment and the roles performed and no more. However, the business should include a statement in this type of reference that it is company policy to provide only factual details, so it does not reflect badly on the employee in question.

If the business decides to provide a more comprehensive reference, a disclaimer should be included. Any disclaimer the business includes must be reasonable. A more detailed reference may include information on:

  • Performance in the job
  • Disciplinary record
  • Honesty
  • Time-keeping
  • Absence record
  • Reason for leaving

Duty owed to the subject of the reference

Discrimination
The business must not provide a discriminatory reference. A business should take particular care when making comments about performance, attendance or sickness absence where there is a risk that these comments may be discriminatory on the grounds of disability. A reference must also avoid victimising the subject (for example, if they have previously complained of discrimination).

Defamation
The business must be able to justify and support any comments made in a reference and show that it honestly holds the views made in the reference to be true.

A business cannot be successfully sued for defamation for the contents of a reference (even if its contents are untrue), providing the business believed the information in the reference was correct at the time it was provided and the contents were provided without malice.

Malicious falsehood
A business could be sued for malicious falsehood if an individual can show that a reference the business gave contained untrue words that were published maliciously (that is, the person who wrote the reference knew the words were untrue or did not care whether they were true or not).

Negligent misstatement
The business could be sued for negligence if it provides an inaccurate reference.

Breach of contract
A business could be sued for breach of contract if it does not give a reference when the business has previously agreed to provide one (for example, in a contract of employment).

Duty owed to the recipient of the reference

Negligent misstatement
A business will usually be asked by a prospective employer for information about an ex-employee because it has specialist knowledge of that employee. If the business provides an inaccurate reference that the prospective employer relies on, it could be sued for negligence.

Deceit
If a business knowingly includes false information with the intention that the recipient will rely on it, the business could be sued by the recipient for deceit.

Data protection

A business must be careful when providing information in a reference about an employee’s sick record or reasons for periods of absence, because information about health is regarded as sensitive personal data.

It should be possible to provide information about how many days absence from work an employee has had during the last year without revealing any sensitive personal data.

If a business is asked to provide information on the reasons for an employee’s absence, it should exercise caution and seek consent from the employee. The business should show the employee a draft response and seek their approval before disclosing it.

We can help you

If any issues arise regarding references, we can advise and support you. Please get in touch.

 We support businesses from around Guildford, Godalming & London.

Redundancy – alternative employment

Briefing May 2016

This employment law briefing sets out the key issues a business needs to consider.

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.

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.
  • Make sure the business continues to search for possible alternative employment until the date an employee’s dismissal takes effect.

Providing employees with sufficient information

Provide sufficient information about any vacancies to all potentially redundant employees, so they can make an informed decision on whether the position is suitable for them. A business should also highlight the financial prospects of any vacant alternative positions. Do not automatically assume an employee would not want to take a more junior role for less money.

Matching vacant roles with potentially redundant employees

  • If the business is dealing with more than one potentially redundant employee, ensure that all of them are made aware of any vacancies.
  • Any potentially redundant employees on maternity or shared parental leave should be offered any suitable alternative vacancies first. If vacancies are then available for other potentially redundant employees, the business will need to decide on the method for determining which potentially redundant employees would be best suited for those roles.
  • When it comes to deciding which candidate to award a vacancy to, the business does not need to take the same approach that is required in a redundancy exercise, where the selection of employees must be based on objective criteria. It can use a competitive interview process and appoint the candidate it considers to be the best for the job, even if this is based on a subjective view. The business simply needs to act fairly and reasonably.
  • Be aware of the risk of discrimination when considering whether there are any suitable vacancies and (if relevant) the process for deciding which potentially redundant employee should be offered each vacancy.
  • The amount of administration and time required is likely to increase as the number of potentially redundant employees increases. This, and the fact that an offer must be made before the termination of an employee’s existing employment, should be taken into account when the business is preparing any timetable for a redundancy exercise.

Bringing vacancies to the attention of potentially redundant employees

  • A business will need to decide how to alert potentially redundant employees to the existence of possible alternative jobs. For example:
    • for a small group of employees, the business may want to speak to them as a group or individually to advise them of the existence of any opportunities and what each involves; or
    • for a larger number of potentially redundant employees, it may be more practical to draw their attention to established methods of communicating vacancies (for example, the business’s intranet or notice boards).
  • If the business uses internal methods of communication, ensure the information is provided separately to any affected employees without access to those methods of communication (for example, because they are on sick leave or maternity leave).
  • It may also be useful to write to each potentially redundant employee confirming the information the business has provided in any meetings and providing details of the vacant roles.
  • The business should offer (and provide sufficient information about) jobs of lower status compared to the job an employee has been dismissed from.
  • Discuss the possibility of all alternatives to redundancy with affected employees, including:
    • possible alternative vacancies; and
    • contractual changes (such as a move to part-time working).

In some cases, it will be appropriate to consider and discuss whether an affected employee should be given another employee’s job with that employee being made redundant (this process is known as “bumping”).

Allocating vacancies between potentially redundant employees

  • Any potentially redundant employees on maternity or shared parental leave have an automatic right to be offered any suitable vacancies first.
  • A business will need to make arrangements for other potentially redundant employees to be considered for vacancies in which they are interested. For example, once the business has provided details of the available vacancies, it can set out a timetable for the applications to be made and for interviews to be held.
  • Applications for vacant roles should be limited to potentially redundant employees and, where possible, appointments should be made from that pool of candidates.

We can help you

If any redundancy situations arise, we can advise and support you. Please get in touch.

 We support businesses from around Guildford, Godalming & London.

Redundancy

Briefing May 2016

This employment law briefing 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 during the redundancy process (including consulting with employees properly) to minimise the possibility of claims for unfair dismissal.

Redundancy and unfair dismissal

  • Redundancy is a potentially fair reason for dismissal. However, a redundancy dismissal is likely to be unfair unless the business:
    • identifies an appropriate pool of employees for selection for redundancy.
    • consults with the individuals in the redundancy selection pool.
    • applies objective selection criteria to the employees in the redundancy selection pool.
    • considers suitable alternative employment where appropriate (subject to a trial period).
  • In certain circumstances, selecting an employee for redundancy will be automatically unfair. For example, selecting an employee:
    • for a reason connected to pregnancy;
    • because they refused to sign a working tie opt-out agreement; or
    • for reasons related to trade union membership or activities.

Alternatives to redundancy

  • At the start of a redundancy procedure, the business should consider whether it can avoid making compulsory redundancies or reduce the number of compulsory redundancies. For example, by:
    • suspending or restricting recruitment;
    • reducing or removing overtime opportunities;
    • not renewing contractors’ contracts; or
    • ceasing or reducing the use of agency workers.
  • If these steps are unavailable or insufficient, the business could also consider:
    • inviting potentially redundant employees to apply for suitable alternative vacancies;
    • inviting employees to volunteer for redundancy;
    • inviting employees to consider early retirement; or
    • temporarily laying off employees or reducing their hours.

Redundancy payments

  • Employees with at least two years continuous employment with the business at the point they are made redundant will be entitled to a statutory redundancy payment.
  • Some employees may also be entitled to an enhanced contractual redundancy payment if their contract of employment or other documents provide for it.

We can help you

If any redundancies arise, we can advise and support you. Please get in touch.

 We support businesses from around Guildford, Godalming & London.

Redundancy selection pools

Briefing May 2016

This employment law briefing highlights the key issues a business should consider when identifying the pool of employees from which it intends to make its selection for redundancy.

What is a redundancy situation?

Redundancy can occur where a business decides to close or relocate, or if a business has a diminished requirement for employees to do work of a particular kind.

Identifying the correct pool

Before selecting an employee for dismissal on the grounds of redundancy, the business must consider from which pool of employees redundancy selection should be made, otherwise the dismissal is likely to be unfair.

Discretion over the size of the pool

  • There are no fixed rules about how a redundancy pool should be defined. As long as the business can show that its choice of pool was reasonable in the circumstances, it will be difficult for an employee (or an employment tribunal) to challenge the decision.
  • For example, it is not always unfair to choose a redundancy pool that is the same size as the number of redundancies being made. However, a business should only choose this option if there are strong reasons for doing so and the business should remain wary of overstating the commercial risks of a wider pool.

Considerations for identifying the pool

  • When considering the choice of pool, the business should start by asking two questions:
    • which particular kind of work is disappearing?
    • which employees do the particular kind of work that is disappearing
  • If there is a clear link between the kind of work that is disappearing and the group of employees that do that work, then the pool is likely to be easy to identify. The business should also consider:
    • the extent to which the employees are doing similar work;
    • the extent to which employees’ jobs are interchangeable; and
    • whether the selection pool was agreed with union or employee representatives.

Look at the work the employees actually do

The business should look at the day-to-day activities of the employees and the terms of their contracts. Businesses should concentrate on the reality of the situation, rather than what the employees’ contracts say in theory that they may be required to do.

Consider interchangeable skills

  • Identifying the pool becomes complicated if the business’ employees are multi-skilled and do different types of work or can be required to do different types of work under their contract of employment. In these cases, the employees are more likely to object to being labelled as redundant, particularly if they can point to other employees with whom they share interchangeable skills.
  • It may be unreasonable for the business to identify one employee as being in the pool simply because they are doing a particular type of work that is disappearing, and ignore another employee doing different work where the first employee could just as easily do that other work.
  • If an employee has previously done other work (other than the kind of work disappearing), it is likely that their skills are interchangeable with the other employees, and so a wider pool may be required.
  • Where the work is “low-skilled”, the skills are more likely to be regarded as interchangeable.
  • Where an employee can point to another employee with interchangeable skills who also has less service than them, this may strengthen the argument that the other employee should be included in the pool.

Consider other sites

Where a business carries out similar work at more than one site, it may be unfair for the business to only include employees at one site within the pool, even if that site is closing completely. The business should therefore consider whether it would be appropriate to include workers from other sites.

“Bumping”

A business is entitled to widen the selection criteria for redundancy beyond those employees that are directly affected by the redundancy situation. The business can consider “bumping” out of their jobs employees whose roles are not redundant, to be filled by employees whose roles are redundant. There is no obligation on a business to consider “bumping”, but the business may fall foul of unfair dismissal law if it would have been reasonable to consider it in the circumstances.

Commercial problems with a wide redundancy pool

Businesses may be reluctant to draw up a wide redundancy pool, even if it would be technically correct to do so, because of the impact that it could have on the morale of the business’s employees. By identifying a narrow pool, or only consulting with those individuals provisionally selected for redundancy, the business may be more vulnerable to claims of unfair dismissal. Businesses must decide whether the risks to morale and other costs of widening the pool outweigh the risk (and cost) of claims.

We can help you

If any redundancies arise, we can help draft the criteria, as well as advise and support you. Please get in touch.

 We support businesses from around Guildford, Godalming & London.

Restrictive covenants in employment contracts

Briefing May 2016

This employment law briefing explains what restrictive covenants are, when they are likely to be enforceable and how they can be used in employment contracts to protect a business’s interests.

What is a restrictive covenant and when will it be enforceable?

  • A business can use restrictive covenants to protect its interests by restricting an employee’s activities for a period of time after their employment has ended.
  • A restrictive covenant will only be enforceable if it protects a legitimate business interest, otherwise it will be regarded as an unlawful restraint of trade. The only recognised business interests are:
    • trade connections (including the relationship between the business and its customers, clients and suppliers);
    • trade secrets and confidential information; and
    • the stability of the workforce.
  • If the business has a legitimate business interest to protect, the restriction will be enforceable, provided it is no wider than is necessary to protect that interest. The covenant must be limited in terms of the restricted activities themselves, and also apply:
    • for a limited time; and
    • within a limited geographical area (if appropriate).

Ensure restrictive covenants are drafted carefully

Restrictive covenants must be drafted carefully so that they:

  • Accurately reflect each employee’s role.
  • Reflect the circumstances of the business.
  • Precisely define the type of restricted activity (for example, what is meant by terms such as “client” or “customer”).
  • Go no further than is necessary to protect legitimate business interests.

The business should regularly review contracts that include restrictive covenants and check whether they need to be updated (for example, if the employee’s role has changed).
Restrictive covenants should always be contained in a document signed by the employee, preferably the employment contract. Unsigned covenants or covenants contained in a staff handbook or on the employer’s intranet will be difficult to enforce.

Non-solicitation restrictive covenants

Customers

    • A business can include a covenant in an employee’s contract preventing them from soliciting or enticing away customers after they have left the business. This type of covenant will be particularly useful if the employee has a strong relationship with certain customers.
    • Generally, the covenant should be restricted to customers that the employee had contact with during a specified period before they left (usually one year, but this will need to be considered with reference to the particular business).
    • There are several factors that the business should consider when trying to establish the duration of a non-solicitation covenant, including the:
      • amount of time it would take for the employee’s successor to gain influence over the business contacts;
      • employee’s seniority within the business;
      • extent of the employee’s role in securing new business;
      • loyalty (or otherwise) of customers in the particular market;
      • frequency of contact with customers in the particular market;
      • “shelf life” of any confidential information known to the employee; and

length of similar restrictions in the employment contracts of competitors.

Potential customers
A restrictive covenant that attempts to extend the restriction to potential customers will be harder to enforce. However, it may be possible to protect an interest in genuine prospective customers if they are accurately defined.

Other employees
A restrictive covenant preventing a former employee from poaching your existing employees is likely to be enforceable, as the stability of the workforce is a legitimate business interest. However, the covenant should usually be limited to those employees at the same level as the former employee and those more senior to them. Any clause that attempts to prohibit the poaching of employees will need to consider:

  • How long the former employee’s influence over the other employees will last.
  • The roles of the employees over whom the influence exists.

Some employers have tried to go further than a non-poaching restriction by including a covenant preventing team moves, limiting the freedom of an employee to join their former colleagues. It is thought that in many circumstances such clauses would be struck out as unreasonable as they are overly restricted and contrary to the public interest in allowing employees the freedom to change jobs.

Non-dealing restrictive covenants

  • A restriction on the solicitation of customers can be extended to cover not only enticement or interference (where active steps are taken by the former employee), but also the provision of services where no active steps are required (for example, where the customer approaches the former employee). This is known as a non-dealing covenant.
  • This type of covenant has a clear advantage as it avoids the need to prove that the former employee made an approach, which is usually difficult. However, it does broaden the prohibition and consequently may make it more difficult to enforce.
  • The enforceability of a non-dealing covenant will depend on the interest the business is trying to protect (for example, enforcement may be more likely if the business can establish a substantial personal connection between the former employee and the business’s customers).

Non-competition restrictive covenants

  • Employees are prohibited from disclosing confidential information amounting to a trade secret (for example, a manufacturing process) after they leave your business. A business can also include express confidentiality provisions in their employment contract to protect the information. Therefore, additional restrictive covenants may be regarded as unnecessary, and non-competition restrictions in particular can be hard to enforce.
  • However, there are circumstances in which a non-competition restriction may be enforced, especially if for a relatively short period. For example, a non-compete restriction is likely to be appropriate where the former employee’s influence over customers or suppliers is so great that the only effective protection is to ensure they are not engaged in a competing business in any way. In addition, it is not possible to provide sufficient protection through confidentiality restrictions, this can be used to justify a non-compete restrictive covenant.

Enforcing restrictive covenants

  • Post-termination restrictive covenants are usually enforced by means of an injunction, which is granted at the discretion of the court with reference to what it regards as fair in the circumstances. Cases will turn on their own facts, and it can therefore be difficult to predict with certainty whether a particular covenant will be enforced.
  • Legal advice should be sought before attempting to enforce any restrictive covenant.

We can help you

Key to this is ensuring that you have the necessary contractual documentation to support your business. We can help draft this. If any issues arise, we can advise and support you. Please get in touch

 We support businesses from around Guildford, Godalming & London.

Section 1 Statement (Employment Contract?)

Briefing May 2016

This employment law briefing sets out the requirements for a Section 1 Statement

Despite what many think here is no legal requirement for an employee to have a written contract of employment. However, the law requires an employee to be given a written “section 1 statement” of certain particulars (information) within two months of starting employment (these can be included within a Contract of Employment).  It is however, beneficial to have an Employment Contract in place.

A section 1 statement includes:

  • The names of the employer and employee
  • The date the employment starts and period of continuous employment
  • Pay (or method of calculating it) and interval of payment
  • Hours of work
  • Holiday entitlement and pay
  • The employee’s job title or a brief description of the work
  • Notice periods
  • Place of work
  • A note stating whether there is a contracting-out certificate in force under the Pension Schemes Act 1993
  • Certain information on disciplinary and grievance procedures

The following information can be given in supplementary statements, provided it is all given within the two months:

  • Terms related to work outside the UK for a period of more than one month
  • Terms as to length of temporary or fixed term work
  • Pensions
  • Collective agreements

To receive a copy of our FREE PDF Section Statement, please email Simona Hamblet on simona@shlaw.co.uk

Most businesses prefer to have a more comprehensive Contract to protect their business. We provide a Fixed Fee Contract to assist. Get in touch for more information.

 We support businesses from around Guildford, Godalming & London.

Settlement agreements

Briefing May 2016

This employment law briefing sets out the key issues a business should consider before entering into a settlement agreement with an employee.

What is a settlement agreement?

A settlement agreement (formerly known as a compromise agreement) is a legally binding agreement between an employer and an employee under which the employee agrees to settle their potential employment claims and in return the employer will agree to pay financial compensation. Sometimes the agreement will include other things of benefit to the employee, such as an agreed reference letter.

In what circumstances will a settlement agreement be appropriate?

  • An employee may have claims against an employer under both their contract of employment and under statute. These claims may arise:
    • on recruitment;
    • during employment; or
    • on termination of their employment.
  • In many cases, an employer may want to make a payment to an employee in return for an effective waiver of their potential claims. Employers can enter into an agreement with an employee to settle potential claims when they are still working for the business, but in most situations, their employment will have ended (or be about to end).

What are the legal requirements for a valid settlement agreement?

To validly settle statutory employment claims, a settlement agreement must satisfy several conditions that must be met:

  • The agreement must be in writing.
  • The agreement must relate to a particular complaint or particular proceedings.
  • The employee must have received legal advice from a relevant independent adviser (for example, a qualified lawyer or union official) on:
    • the terms and effect of the proposed agreement; and
    • its effect on their ability to pursue any rights before an employment tribunal.
  • The independent adviser must have a current contract of insurance (or professional indemnity insurance) covering the risk of a claim against them by the employee for the advice.
  • The employee’s adviser must be identified.
  • The agreement must state that the conditions regulating settlement agreements have been satisfied.

Possible content of a settlement agreement

Other than the legal requirements listed above, the contents of a settlement agreement are largely at the discretion of the business and the employee involved. Examples of common clauses include:

  • Compensation for loss of employment.
  • Contribution to legal fees.
  • Waiver of claims by the employee, including warranty that the claims listed are the only claims which the employee has against the employer.
  • Re-assertion or modification of existing restrictive covenants.
  • Return of the employer’s property.
  • Indemnity from employee in relation to tax and National Insurance Contributions.
  • Undertaking from the employee not to use the employer’s confidential information or make any adverse comments about the employer.

Which types of claim can be settled by a settlement agreement?

Only certain statutory claims can be settled by a settlement agreement. These include claims for:

  • Unfair dismissal.
  • Whistleblowing.
  • Discrimination, victimisation or harassment related to age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
  • Equal pay.

Which types of claim cannot be settled by a settlement agreement?

There are several statutory claims that cannot be settled by entering into a settlement agreement, including some types of:
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  • Future personal injury claims (which have not yet arisen).
  • Claims for failure to inform and consult in connection with collective redundancies and on a transfer of a business.

 

We can help you

We can assist with drafting, advising upon and negotiating terms of any Settlement Agreement. Please get in touch.

 We support businesses from around Guildford, Godalming & London.

Sickness absence dismissals

Briefing May 2016

This employment law briefing sets out a checklist for businesses to consider when considering a sickness related dismissal for either capability, conduct or some other substantial reason.

Documentation

  • Check (and comply with) any relevant sickness or absence procedures and employment contract provisions.
  • Keep confidential records of medical certificates, correspondence and telephone calls and meetings.

Investigation

  • Investigate the nature, extent and likely duration of illness. Ask the employee for information and obtain medical report if appropriate. If absence is stress-related refer the employee to any stress policy or counselling services on offer.
  • If absences are short-term and intermittent, investigate whether there is any underlying cause (medical or otherwise). If necessary, follow capability or disciplinary procedure, offering practical guidance and assistance, setting timescales for improvement, and giving warnings where appropriate.
  • Keep in contact with the employee throughout the procedure but especially in relation to medical evidence received, prior to making adjustments, identifying an alternative position or taking a decision to dismiss.

Disability and reasonable adjustments

  • Consider whether an employee is disabled for the purposes of the Equality Act 2010, relying on medical evidence as required.
  • Consider whether any adjustments (for example, to the employee’s duties, workplace or working conditions) would facilitate their return to work (or their taking less time off if absence is intermittent).
  • Consider whether these adjustments are reasonable in the circumstances.

Reviewing the alternatives

  • Before taking a decision to dismiss, consider surrounding circumstances, age and length of service of the employee together with action taken in respect of similar circumstances in the past.
  • Consider the importance of the employee and/or the post occupied, to the business, the impact their continued absence is having on the business and the difficulty and cost of continuing to deal with their absence before contemplating dismissal.
  • Consider whether the employee could take up alternative employment or whether there are any other options that would avoid the need for dismissal.
  • If the employee has been absent long-term and is unlikely to return in the foreseeable future, consider claiming under terms of any PHI policy or ill health retirement (and seeking additional medical evidence for such a claim if required).
  • Review medical evidence to ensure it is up-to-date. Identify correct potentially fair reason for dismissal – capability, conduct or SOSR (some other substantial reason)?

Contemplating dismissal

  • Once dismissal is contemplated, write to the employee to invite them to a meeting. Give enough information about the circumstances you are taking into account (see above) and the possible outcomes, to enable the employee to participate meaningfully.
  • Hold the meeting with the employee and give them the opportunity to present their case against dismissal.
  • Confirm any subsequent decision to the employee in writing.
  • On dismissal ensure the employee’s contractual and statutory entitlements are met and that they receive correct pay entitlement, including holiday pay.
  • In the dismissal letter identify reason for dismissal, effective date of dismissal and offer the employee the right of appeal from the dismissal decision.
  • Hold an appeal meeting if requested by the employee and confirm decision to the employee in writing.

We can help you

Key to this is ensuring that you have the necessary contractual and policy documentation to support your business. We can help draft this. If any issues arise, we can advise and support you. Please get in touch.

 We support businesses from around Guildford, Godalming & London.

Slavery & Trafficking Offences

Briefing July 2016

This employment law briefing sets out a checklist for businesses to understand the Modern Slavery Act 2015.

The Act

The purpose of the Modern Slavery Act 2015 (MSA) is to ensure that supply chains are slavery-free. The fact that a company has published a slavery and human trafficking statement, as required by section 54 of the MSA is not the extent of corporate responsibility so a company should remain vigilant. The company could be prosecuted for one of the substantive criminal offences under the identification principle and the rules of attribution.

There are three criminal offences (all triable either way):

  • Slavery, servitude and forced or compulsory labour.
  • Human trafficking.
  • Committing any offence with the intent to commit human trafficking.

Slavery, Servitude & Forced or Compulsory Labour

A person (which includes a legal person) commits an offence if they:

  • Hold another person in slavery or servitude.
  • Require another person to perform forced or compulsory labour.

The mental element of the offence can cause a problem for a company. It is both a subjective and an objective test: the circumstances must be such that the person knows or ought to have known that this was happening. The state of knowledge of a company will be tested against the state of knowledge of a reasonable person. If the company ought to have known what was happening, the mental element of the offence is made out.

How will the Court determine whether a person is being held in slavery of servitude

The court will have regard to all the circumstances, including:

  • Any of the person’s personal circumstances which may make them more vulnerable than others (such as being a child, their family relationships or any mental or physical illness).
  • Any work or services provided by the person, including work or services provided in circumstances that constitute exploitation.

What if a person consents to any acts alleged to constitute holding him in a slavery or servitude

An individual’s consent to travel or to act, whether they are an adult or a child, does not preclude a determination that the person is being held in slavery or servitude or is being required to perform forced or compulsory labour.

 

Human Trafficking

A person commits an offence if they arrange or facilitate the travel of the victim (V) with a view to them being exploited.

This may be by recruiting, transporting or transferring, harbouring or receiving V, or transferring or exchanging control over V. Again, the mental element is tested objectively and subjectively: did the person know or ought to have known that another person was likely to exploit V during or after the travel?

Can a person who is not a UK national commit this offence?

A person who is not a UK national commits this offence if any part of the arranging or facilitating takes place in the UK, or the travel consists of arrival in or entry into, departure from, or travel within, the UK.

A person who is a UK national commits this offence regardless of where the arranging or facilitating takes place, or where the travel takes place.

What is the meaning of exploitation?

Securing services by force, threats or deception constitutes exploitation, as does using force, threats or deception to induce the victim to either:

  • Provide another person with benefits of any kind.
  • Enable another person to acquire benefits of any kind.

Committing an offence with intent to commit a human trafficking offence

This new offence broadens the previous trafficking offence, which only applied to trafficking for the purposes of sexual exploitation. The new offence applies to any exploitation.

Sentences for slavery or trafficking offences

An individual (for example, a director or officer) is subject to a maximum statutory penalty of life imprisonment following conviction for either a slavery or trafficking offence. A company is subject to a fine for this offence.

An individual convicted of committing an offence with the intention to commit human trafficking carries a maximum penalty of ten years’ imprisonment.

A confiscation order or compensation order (or both) may be made. The victim surcharge also applies.

We can help you

It is important to ensure that businesses are looking at their supply chain & the impact it may have. We have also created an article on this which can be found here. If you need any help, please get in touch.

 We support businesses from around Guildford, Godalming & London.

Social media

Briefing May 2016

This employment law briefing highlights some practical steps that a business can consider with regards social media policies for their employees.

Your social media policy

It is recommended that you send a clear signal about company expectations for employee use of social media by adopting a stand-alone social media policy or including one in an employee handbook.

Use the policy to remind employees that social media activity in the workplace is not necessarily private and that the employer can discipline employees for conduct that breaches employee policies in the social media arena. Also remind them that online conduct harmful to the company can amount to misconduct or in some cases gross misconduct.

Include appropriate restrictions covering:

  • employee use of company IT resources;
  • employee use of company intellectual property assets and confidential and privileged information;
  • employee use of third-party intellectual property;
  • protection of third-party confidentiality and privacy;
  • prohibition on harassment or bullying of other employees;
  • prohibition on discrimination; and
  • prohibition on negative comments about the company, its employees, business contacts or competitors.

Companies that encourage social media usage for marketing, recruiting, corporate communications and other business purposes may also be interested in setting company guidelines for use of social media.

You should also ensure the social media policy is consistent with your other policies.

Preserve good business relationships and promote a positive corporate image by:

  • specifically prohibiting defamation through social media in the employment contract; and
  • amending policies to ensure that employees understand that social media messages may reflect on their employer. Consider requiring employees to state in their social media postings that their views do not necessarily reflect the views of the company.

Protect confidential and proprietary information

Educate employees about the consequences of disclosing or misusing the company’s confidential information or intellectual property in the social media context. An employee’s disclosure or misuse of confidential information or intellectual property could:

  • result in breach of the employment contract;
  • breach the terms of a confidentiality agreement between the company and a third party, causing the company to be in breach;
  • compromise the company’s ability to preserve its intellectual property rights;
  • create embarrassment or confusion among employees or clients;
  • jeopardise legal privilege between the company and its in-house legal counsel; or
  • breach securities laws, by disclosing material non-public information, by not including appropriate cautionary statements or necessary information together with the disclosure, or by creating a false or misleading impression of the market for a company’s securities with fraudulent or misleading information.

You ought to amend company policies and employment contracts to address these risks.

Prevent harassment and bullying via social media

Include references to social media in anti-harassment and anti-bullying policies and in any training offered to prevent workplace harassment.

Make sure the corporate response to harassment (sexual or otherwise) and bullying through social media is consistent with the response to harassment and bullying in other contexts.

Train employees

Train human resources management on appropriate and effective employee monitoring and enforcement of the various company policies, restrictions, guidelines and contract provisions relating to social media. Make sure you do so in compliance with employees’ privacy rights.

Avoid imposing unnecessary restrictions

Disproportionate restrictions can undermine employee morale and invite non-compliance, without real benefit to the company in terms of protecting its property, reputation or employees.

In summary

Do:

  • Adopt a social media policy to encourage appropriate employee use of social media.
  • Use the policy to prohibit employees using social media in ways that could damage the company.
  • Provide training to employees on the appropriate use of social media, and monitor for compliance.

Do not:

  • Allow employees to disclose or misuse confidential or proprietary information.
  • Permit employees to use social media to harass colleagues.
  • Impose unnecessary restrictions on employee use of social media.

We can help you

Key to this is ensuring that you have the necessary policy documentation to support your business. We can help draft this. If any issues arise, we can advise and support you. Please get in touch.

 We support businesses from around Guildford, Godalming & London.

TUPE transfers

Briefing May 2016

This employment law briefing explains when TUPE applies and sets out the different obligations a business involved in the transaction may owe under the legislation.

What is TUPE?

TUPE is an acronym for the Transfer of Undertakings (Protection of Employment) Regulations 2006. Where TUPE applies, employees automatically transfer from one employer to another with their terms of employment and continuity of service intact.

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.
  • A client brings the outsourced services back in-house.

Which rights are automatically transferred under TUPE?

  • Employees transfer to the new employer on their existing terms of employment and with all related employment rights, powers, duties and liabilities. Old age, invalidity and survivors’ benefits under occupational pension schemes are excluded.
  • The new employer steps into the shoes of the transferring employer in relation to the transferred employees. Any acts or omissions committed by the transferring employer are treated as having been done by the new employer.
  • Employees who object to the transfer do not automatically transfer to the new employer. Their contracts will instead terminate on the transfer date, unless they resign sooner.

Changing terms of employment

  • Any changes to an employee’s terms of employment are void if the main reason for the change is the transfer itself, unless there is an economic, technical or organisational reason requiring changes in the workforce (ETO reason) for the change.
  • However, it is possible to make changes to transferring employees’ employment terms if the reason for the change is permitted by the terms of the contract.

Protection against dismissal

  • Employees are entitled to enhanced protection against unfair dismissal. Any dismissal of an employee with the qualifying period of service is automatically unfair where the main reason for the dismissal is the transfer itself, unless there is an ETO reason for the dismissal.
  • This enhanced protection also applies if:
    • an employee resigns in response to a serious breach of their contract; or
    • the new employer makes a substantial change in the employee’s working conditions which is detrimental to them.
  • Employers can be ordered to reinstate, re-engage or compensate the dismissed employee if their complaint is upheld by an employment tribunal.

Obligations to inform and consult

  • Both parties involved in the transfer are obliged to inform and (if appropriate) consult recognised trade unions or elected employee representatives in relation to their own employees who may be affected by the transfer. If there are no existing representatives they must be elected by the affected employees for the purposes of consulting over the transfer.
  • An individual employee has the right to bring a claim for breach of these requirements if an employer:
    • fails to take any steps to invite employees to elect representatives; or
      in the absence of election, fails to give information to the affected employee.
  • Certain information (for example, the reason for the transfer and where it is expected to take place) must be provided to the representatives long enough before the transfer to enable the transferring employer to consult with them about it. Although the duty to inform always arises, the duty to consult only arises where an employer envisages taking measures in relation to affected employees.
  • Employers that use agency workers should provide certain information on their use, for example, the:
    • number of agency workers the employer uses;
    • parts of the business in which agency workers operate; and
    • type of work agency workers carry out.
  • Failing to comply with these obligations can expose both parties involved in the transfer to up to 13 weeks’ uncapped pay for each affected employee. In certain circumstances, both parties can be held to be jointly and severally liable.

Employee liability information

  • The transferring employer must provide information (for example, the disciplinary and grievance records of the transferring employees) to the new employer not less than 28 days before the transfer.
  • If the transferring employer fails to comply with this duty, the new employer can apply for compensation based on the losses suffered, with a minimum award of £500 for each employee that the information was not provided for.

Insolvent businesses

To help the rescue of failing businesses, some key TUPE employment protections are relaxed if the transferring employer is insolvent. The extent of these modifications depends on the type of insolvency proceedings the transferring employer is involved in.

We can help you

If there is a potential TUPE transaction or it is ongoing, we can advise and support you. Please get in touch.

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