HR FAQs
MAY 2008
Employers and their Human Resources advisers face constant
difficulties in trying to avoid the potential pitfalls posed by current
employment law. This bulletin aims to address, in a practical way,
some issues commonly dealt with by Human Resources
departments, and to give realistic guidance on how to reduce the
risk of employment related litigation in these areas.
LEGAL UPDATE
Immigration, Asylum and Nationality Act 2006
From 29 February 2008 there are new penalties for illegally employing
migrant workers. The Act provides for a maximum fine of £10,000 per
illegal worker and a new criminal offence for employers who knowingly
employ illegal workers, with a maximum penalty of two years imprisonment
and/or an unlimited fine. Employers now have a continuing responsibility
to check their workers’ ongoing entitlement to work in the UK. Further
information may be obtained from the Border and Immigration Agency
website: http://www.bia.homeoffice.gov.uk/
Information and Consultation of Employees Regulations 2004
From 6 April, these Regulations apply to undertakings with 50 or more
employees (they previously applied only to those with 100 or more).
Statutory Maternity, Paternity and Adoption Pay and Statutory Sick Pay
With effect from 1 April, Statutory Maternity, Paternity and Adoption Pay
increased to £117.18 per week. Statutory Sick Pay increased to £75.40 per
week from 6 April.
Corporate Manslaughter and Homicide Act 2007
From 6 April, this Act introduces the offence of corporate manslaughter
where an organisation will be guilty of an offence if the way in which its
activities are organised by senior management causes a person’s death and
there has been a gross breach of a duty of care owed to that person.
FAQs - Contracts of Employment
Q: Due to changes in business
needs and new legislation we think
that our contracts of employment
require updating. Can we issue
new contracts to existing
employees and assume that, if we
do not hear anything, they are
agreed? We have a term in our
existing contract that allows us to
vary terms.
The basic rule in this scenario is that
employers cannot vary the terms
of an employee’s contract without
his/her consent. Ideally, consent
would be express, i.e. the employee agrees to the change in writing. However, in some
circumstances consent may be implied by the
employee’s conduct, e.g., if he/she continues to work
without protest for a significant period of time
following the change being brought to the employee’s
attention.
Any change to the terms of an employee’s contract
without consent is a breach of contract.
If the change is a significant one, the employee may
be entitled to resign and claim that he/she has been
constructively dismissed. If significant changes are
proposed, it is suggested that the best course
of action is to consult with employees about why the
changes are required, with the aim of obtaining
express consent.
Note that consent will not necessarily be implied
for all changes, even if the employee continues
to work without protest. This will depend upon the
changed term and whether it is one which has
an immediate effect on the employee (e.g. hours
of work) or is one which does not have an immediate
practical effect (e.g. a change to sick pay).
Furthermore, the introduction or variation of certain
terms during employment may require more than
acceptance in order to become enforceable. New or
amended post-termination restrictions
or confidentiality clauses will require express written
consent and what is known as “consideration” passing
from employer to employee, to be binding.
The consideration can take the form of a one-off
bonus or a pay rise linked to the employee’s
acceptance of the new terms.
Even if you have expressly reserved the power to vary
the terms of employment in your existing contracts,
in practice this does not give you an absolute right to
do so and such clauses should be treated with caution.
Recruitment and Discrimination
Q: In the past we have advertised for vacancies
using the words lively, enthusiastic, dynamic. Are we at risk of an age discrimination claim?
The simple answer to this is: yes. More and more age
discrimination claims are being pursued through the
employment tribunals. It is essential to protect your
business from such allegations at all stages of the
employment process, even in advertising vacant posts
because the protection provided by the legislation
extends to applicants for employment. The words you
are using suggest that younger candidates will
be favoured over older ones.
In a recent employment tribunal case, the term “youthful enthusiasm” was used in the advertisement.
Whilst the employer did invite older applicants for
interview (the Claimant in this case was 58),
the suggestion of discrimination was compounded
further by the interview, which included a question
as to whether he still had the motivation and drive
to be successful in the post at his age. Despite having
30 years’ experience, his application was unsuccessful
and the successful candidates were younger with less
experience. The tribunal held that the advertisement
and the interview questions indicated that the
Claimant’s age had been taken into account in the
decision not to recruit him and upheld his age
discrimination claim.
Practical tips for the recruitment process:
- Choose advertisement wording carefully.
The emphasis should be on the skills required
to do the job in question; use the job description
as a benchmark;
- If using images in advertisements, consider
whether they are aimed at particular groups
to the possible exclusion of others;
- Consider where you place your advertisements.
Are the websites, portals and publications you
use likely to attract a wide range of applicants
from diverse backgrounds? Remember that
internet-only advertisements may not reach
certain types of workers;
- Avoid age-related assumptions about drive and
motivation. Ensure that individuals in your
organisation who are responsible for writing
advertisement copy or for interviewing
candidates are aware of current discrimination
legislation and consider providing specific training;
- Keep records of the recruitment process. Ensure that a broad range of candidates are considered
and record reasons for selection or refusal,
ensuring that these are objective and not
discriminatory; and
- Finally, remember that age is not the only type
of discrimination.
Employment Practice
Q: We commonly ask our staff to work overtime.
Is there a limit on how much overtime we can ask
for?
There are a multitude of rules regarding the hours
that a person can work. These rules not only apply
to employees but also to workers, including agency
workers.
Firstly, there is a limit on the maximum weekly time
that a worker can work. This is capped at an average
of 48 hours, calculated over a 17-week reference
period. However, it is possible to seek the worker’s
agreement to work in excess of this 48-hour limit
(although such opt-out must be obtained voluntarily,
in writing and be terminable on not more than
3 months notice). It should also be remembered that,
regardless of any opt-out, there is an overriding
obligation to protect the worker’s health and safety so
they should not be required to work excessive hours.
For night workers, being those that work at least
three hours during the period of 11pm to 6am, there
are more restrictive rules. Night workers must not
work more than an average of 8 hours in each 24-hour
period, calculated over a 17-week reference period
(or where the night work involves special hazards
or heavy physical or mental strain, there is an
absolute cap of 8 hours per 24-hour period).
Night workers must also be offered health
assessments to check the impact of the night work
and if health problems are identified as being
connected to the night work, there is a requirement
to transfer the worker to day work, where possible.
Employers are obliged to keep records for 2 years
to show that they have complied with the limits
on average working time, night working and health
assessments.
Secondly, there are obligations to provide the workers
with adequate rest breaks. In summary, a worker
should be allowed:
- at least 20 consecutive minutes rest if working
for a period of 6 hours or more;
- at least 11 consecutive hours rest in each 24-hour
period; and
- at least two 24-hour or one 48-hour
uninterrupted rest break in each 14-day period.
Special rules may apply whereby employees can
be given compensatory rest breaks in lieu of the
above, for example, where there is a surge of activity,
unforeseen circumstances or at a shift changeover.
In addition, it should be remembered that workers are
entitled to 4.8 weeks of annual leave (rising to 5.6
weeks from 1 April 2009), subject to a maximum cap
of 28 days per annum. This can include public
holidays.
Finally, it should be noted that many of the above
rules can be modified by way of a collective
or workforce agreement. Also, there are more
restrictive requirements in respect of young workers
(being those under 18) and special rules for some
categorises of workers, such as those in the transport
sector.
With the above in mind, it is important to ensure that
any overtime worked still takes into account the
working time limits, rest breaks and holiday
entitlement as well as complying with the employer’s
general duty regarding health and safety.
Probationary Periods
Q: We have an employee who is coming to the end
of her 3 month probationary period but who is
underperforming, despite training provided.
We are able to terminate employment by giving one
week’s notice during the probationary period but
have to give 3 months’ notice thereafter if she
is confirmed in the post. What should we be doing
to address the situation and when?
Firstly, you need to consider whether you wishto extend her probationary period to
give her a further period in which to
improve, or whether improvement is
unlikely and you wish to terminate
her employment before the end of
the first 3 months.
If you want to extend the
probationary period, you should
discuss the problems with her as
soon as possible before the end of
the first 3 months. Write to her to
confirm that you are extending her
probationary period, indicating for
how long and that the one week
notice period will continue to apply
during this period. Explain that
(and ensure that) her performance
is monitored during the extension.
It is extremely important to notify
her of this extension before the end
of the probationary period,
likewise if you want to terminate her
employment by giving one week’s
notice otherwise the employee will
assume she has successfully
completed the probationary period.
Once the 3 month period is over,
you will have lost the right to dismiss
her on one week’s notice as she will
have become entitled to receive
3 months’ notice under her contract.
There should be no reason why
probation should last more than 6
to 9 months.
Make the most of the probationary
periods for new staff and carefully
monitor performance and conduct.
All too often employers allow
employment to continue past
the end of the probationary period
without having raised concerns and
then find that the employee has
completed a year of service.
This means she has accrued the right
to claim unfair dismissal, so if the
employer now wishes to terminate
for reasons of poor performance
a full performance improvement
process via use of a disciplinary
procedure will be necessary, if the
resultant dismissal is to be fair.
If you would like any further information about the issues raised in this newsletter, or any other aspect of employment law, please contact , Partner, or any other member of Goodman Derrick LLP's .
This guide is for general
information and interest
only and should not be
relied upon as providing
specific legal advice. |
