Employers and their Human Resources advisers face constant difficulties in trying to avoid potential pitfalls posed by current employment and discrimination law. This bulletin addresses, in a practical way, some issues commonly dealt with by Human Resources departments and gives realistic guidance on how to reduce the risk of employment related litigation in these areas.
From 1 February 2012:
Unfair dismissal eligibility
The qualifying period for unfair dismissal claims (i.e. the length of time that an employee usually needs to be employed for before they are eligible to bring such a claim) will increase from one year to two years with effect from 1 April 2012. This will apply to employees who commence employment on or after 6 April 2012.
Statutory sick pay
From 9 April 2012, statutory sick pay (SSP) will rise from £81.60 to £85.85 per week.
Pay for family leave
Statutory maternity pay, adoption pay and paternity pay will increase to £135.45 per week (from £128.73) with effect from 9 April 2012.
Readers will recall that the Bribery Act 2010 came into force on 1 July 2011. The first person, a former Court Clerk, has now been prosecuted under this Act. He was charged with accepting a £500 bribe in exchange for omitting to record a traffic offence. He pleaded guilty and was sentenced in late 2011 to 3 years imprisonment.
Employers should remember that they must have proper anti-bribery procedures and practices in place if they stand any chance of successfully relying on the statutory defence to bribery allegations.
London 2012 Olympics
The long awaited London Olympic and Paralympics Games will start in less than 6 months times. Make sure you are ready! Will you need to put special arrangements in place for employees living in areas where travel disruption is expected? How will you deal with competing holiday requests from your employees? Should you allow your employees to watch the Games during their working hours?
Consider tackling these issues and more in a specific policy so that everyone is clear about the workplace arrangements that will apply for the Games. Let us know if you need any help with this because we are ready with suggestions and solutions for you.
FAQsQ: We would like to introduce a change to our employees’ contracts of employment. In particular, we want to introduce a restriction into their contracts which prevents them from soliciting our clients when they leave our company. Are we able to do this? When introducing a change to your employees’ contracts of employment you will need to consult with them. The simplest way to introduce a change to their contracts and to ensure that the new terms are binding is to seek their express consent by discussing the proposal with them and asking them to sign a letter of variation confirming their agreement to the change.
As you are asking the employees to agree to a restriction on their actions following the termination of their employment with you, we would recommend that you introduce this change at the same time as a pay rise is being made or some other benefit is being given to your employees. This would show that your employees are being given valid “consideration” for agreeing to these new obligations which is a requirement for this type of obligation to be legally binding. If this is not possible, you might want to consider making a one-off payment to them. If you decide not to give any “consideration” at all to your employees and they agree to the change in any event by signing a letter of variation as a deed, there is still a risk that the restriction would not be enforceable by the courts and would be useful as a deterrent only in preventing your employees from soliciting your clients.
If an employee refuses to accept the change in terms, you have a number of potential options, including:
In this case, your safest option would be to obtain each employee’s written consent to the introduction of the new restriction and to offer them some consideration for this agreement. If you are unable to obtain their agreement, you will need to consider how important the change is to your business and whether to adopt one of the alternative options. We strongly advise that you seek further legal advice before imposing any changes on your employees.
Q. One of our secretaries has asked for 2 weeks unpaid time off to support their husband following a pre-planned hernia operation in which he was told he would require some care and assistance for 2 weeks after the operation. Are we required to agree to this time off?
An employee has a statutory right to take a reasonable amount of unpaid time off work to deal with particular situations affecting their dependants. However, the time off must be necessary and must fall within a particular category set out in the legislation. For example, an employee will be entitled to take time off to provide assistance if a dependant falls ill or to make care arrangements for a dependant who is ill.
It is a question of fact as to whether the time off is reasonable. The Employment Appeal Tribunal in the case of Qua v John Morrison Solicitors  published some useful guidance. It stated that “it may be in the vast majority of cases, no more than a few hours, or at most one or possibly two days would be regarded as reasonable to deal with the particular problem which has arisen.” It very much depends on the nature of the incident and the employee’s individual circumstances, as to whether the amount of time off is reasonable or not.
Further, there is a quirk in the regime. It does not generally apply to planned time off to care for dependants. This means that strictly speaking the regime would not apply to your secretary, as it as it was known to her that her husband would require 2 weeks care and assistance following his operation.
Remember that although you are not required to give this time off under the “time off for dependants regime,” you could still make alternative arrangements with your secretary. For example, you could give her the option to take holiday or to take an extended period of unpaid time off. Consider any internal policy you might have in relation to unpaid time off and whether your secretary may be entitled to any time off under this policy. It is also important to take into account whether any of your other employees have been given unpaid time off in similar circumstances, as you may have created a term permitting unpaid time off which could be implied into your secretary’s and other employees’ contracts of employment through custom and practice.
Whilst legal rights are always relevant, you also need to consider best practice and employee relations.
Q. We are considering recruiting some volunteers to help out in our advertising company. We would like them to work 3 days a week, 9 to 5 for a two month period. We have been told that we do not need to pay them the National Minimum Wage as they are volunteers. Is this correct?
Employees and workers have certain legal rights and protections under employment and discrimination laws, including the right to be paid at least the National Minimum Wage. Genuine volunteers on the other hand, are generally not protected in this way and have no right to the National Minimum Wage.
The legal status of an employee, worker or volunteer is not determined solely by what is written in any contract, other documentation or by the labels used within the organisation. The tribunal and courts will look at the facts of the working relationship and will consider what actually happens in reality.
The following factors would indicate that there is an employment relationship between an individual and an employer, rather than a volunteer relationship:
The definition of a worker is even wider than that of an employee and again it is essential that an intended volunteer does not fall into this category if they are to be unpaid. An individual will be deemed to be a worker if:
You must therefore determine whether the individual is an employee or a worker (in which case they must be paid at the very least the National Minimum Wage) or a genuine volunteer (in which case, you do not need to offer any pay).
In your situation, there appears to be a high risk that if you recruit volunteers to work 3 days a week, 9 to 5 for a two month period that they would at the very least be classified as workers and maybe even employees. This is because you would be exercising control over them, requiring them to provide a personal service and there would be mutuality of obligation, as you would be expecting them to turn up and perform their work on that day. In these circumstances, you would be obliged to pay the individuals at a rate at least equivalent to the National Minimum Wage, which is currently £6.08 per hour for those aged over 21. Failure to do this could lead to criminal prosecution.
If you want to ensure the individuals are genuine volunteers, it is essential that they are not required to work fixed days or set hours. You should also ensure that there is no obligation on the individuals to perform specific tasks. If you want to pay the individuals for their expenses, you must reimburse their actual out-of-pocket expenses only. We would also recommend that you enter into a volunteer agreement with each individual to reinforce the voluntary arrangements and to avoid creating an employment/worker relationship with the individuals.
This guide is for general information and interest only and should not be relied upon as providing specific legal advice.
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