As a result of some big legal cases last year, the status of workers is coming under the spotlight like never before. This will be a big area for change in 2017 as the Governement are focussing on understand and protecting Gig Workers.
Most of our clients are terrified of the thought of ending up in an employment tribunal, not because they have done anything wrong, but because of the hassle, aggravation, time and money it takes to defend the case. Although the UK government have brought in charges in the hope that this would reduce the number of spurious claims, many employees are still able to find a solicitor willing to take on their cases and make something out of not a lot!
With this is mind, I was very interested to read an article this week which provided 5 reasons why companies lose employment tribunals and they are not what you might think!
The first reason that a company may lose a case is because they are not likeable. As with everyone else you meet in life, an employment tribunal chairman is human with their own likes and dislikes. If the facts of the case mean that both the employer and employee could be right, perhaps a case of ‘he says she says’, then the chairman may go with a gut instinct about who is the ‘good guy’ in this struggle.
As the employer, your job (or that of your defence team) is to win over the affections of the judges so that you are perceived to be the good guy. The winning over may actually happen as a result of what has happened in the workplace. If you can demonstrate that you have always tried to be supportive, that you have always had the best intentions and that you have genuinely cared, but the employee has just taken advantage of you and left you no alternatives, then the judges may see you very differently if the behaviour which has led to the tribunal is part of a string of normal, perhaps bullying behaviour.
However, if the winning over needs to be done in the court room:
• Remember your manners
• Don’t argue
• Don’t talk over people
• Show empathy
• Admit any situation, where with the benefit of hindsight you could have done something differently (as long as this does not undermine your case)
The second reason identified as likely to lead to losing a case is loss of evidence.
Now this one made me laugh and took me back to October 2004. I was working in a further education college and was helping with an HR department to relocate. There was a locked filing cabinet and nobody could find the key. I refused to move the cabinet into the new, much smaller office space unless we knew what was in it and eventually called facilities and asked them to bring me a crow bar!!!
When the caretakers came up with the crow bar they kindly did the breaking for me and in 3 of the 4 drawers we found all the evidence for a tribunal case which had taken place 2 years earlier and the college had lost because they didn’t know where their evidence was. Seeing the contents of the filing cabinet, one of the HR team said ohhh, that must have been Mrs Jones’ filing cabinet, I think she took the keys with her when she left.
Regardless of the merits of the case, they deserved to lose if they didn’t have the wherewithal to work out where their evidence might be, given that it was in the corner of their office all the time.
Not having the right documentation in place at the time the incident / behaviour happened is the third reason given for employers losing an employment tribunal.
This is a problem that we have identified among our new clients, who tend to come to us once they have a problem and by that time, it is sometimes too late to put the right policies, procedures and practices in place. We find ourselves shutting the stable door after the horse has bolted.
For an employer to have a mandate to manage their business the way they want to, they need to have the right policies and procedures in place which are documented, communicated and complied with. Failure to do this just exposes your business to so much unnecessary risk. This is actually what led us to develop our HR in a Box™ product to enable micro businesses with up to 10 staff to adequately protect themselves.
When you are preparing your case for the employment tribunal, you will need to provide evidence of policies, communication etc in your bundle and it is essential to your defence that you can produce these.
The next reason why an employer may lose a tribunal may be down to the quality and preparation of their witnesses.
For anyone, the thought of giving evidence in a court or tribunal can be very daunting, so ensuring that your witnesses are properly prepared, fully understand what they are there to get across and are focussed on their facts is essential. The opposition will try to make things as difficult as possible for your witnesses, will try to undermine their credibility and to confuse them about their story. Your witnesses need to be prepared for this, even to the extent of role play cross examinations prior to the tribunal so that they know how it feels to be aggressively questioned and challenged.
Finally, employers need to show passion. You need to show that you truly care about your business, your staff and the situation you have found yourself in. You need to make the time to prepare properly for the case, you need to prioritise the headache of the tribunal at an early stage, so that you create the time and space needed to provide a consistent, passionate and robust case.
So, in summary:
1. Be likable
2. Don’t lose your evidence
3. Make sure policies and procedures are documented now to avoid problems later
4. Make sure your witnesses are adequately prepared and know what to expect
5. Have passion and be consistent
To add a cheeky sixth point here, a lesson from my Scouting Days ……. Be Prepared. A strong case can fall apart if not properly prepared and a weak case could win if enough preparation has gone into it.
Since May 2015, employers have not been ‘allowed’ to include exclusivity clauses in zero hours contracts of employment. However at the time, there was no penalty against them if they did so or if they disciplined an employee or treated them less favourably for working elsewhere or asking for permission to work elsewhere.
Finally, some decisions have been have been taken and legislative changes made which will give workers additional protection and enable business owners to decide whether or not zero hours contracts are appropriate for use in their business; whether they provide the flexibility the business requires and whether they are the most appropriate form of contract to use.
The Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 came into force on 11th January and provides employees with a number of rights and more importantly consequences for the employer if these rights are breached.
Any dismissal of a zero hour contract employee is automatically unfair, if the main reason is that she/he breached a contractual clause prohibiting him/her from working for another employer. No qualifying period is required to bring such an unfair dismissal claim; and, it is also illegal to submit a zero hour worker (note: worker which means they do not have to be an employee!) to detriments if they work for another employer in breach of a clause prohibiting them from doing so.
Employees and workers now have more rights at the employment tribunal with respect to claims related to their zero hours contract.
A worker may present a complaint to an employment tribunal where an employer has infringed their rights but, the worker only has three months from the incident (or last occurrence of a number of incidents) to raise the complaint. However, a tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so
Where an employment tribunal finds that a complaint presented to it under the regulations is well founded, it may take one of the following steps as it considers just and equitable
• making a declaration as to the rights of the complainant and the employer in relation to the matters to which the complaint relates
• ordering the employer to pay compensation to the complainant. The employment tribunals have discretion over the amount of compensation awarded and again refers to a ‘just and equitable’ decision.
Until there is some case law in this area, we really have no idea how this will impact employers: whether it provides enough of a disincentive to employers when considering the use of zero hours contracts and whether the compensation and fines handed out by the employment tribunals will make the use of zero hours contracts null and void.
There are many businesses where having your employees work for a competitor is not a problem, but there are definitely environments where not having an exclusivity clause will be an issue and employers will need to very carefully consider whether a part time contract will provide greater cover. At this stage we also don’t know whether a robust non compete clause prohiting workers working for a direct competitor will fall foul of this legislation.
Also the new Government guidance provides examples of what is considered “inappropriate use” of zero hour contracts and states that zero hours contracts should not be used as a permanent arrangement for an employee who works set hours each week, even if the hours worked are part time. At this stage it is unclear whether an exclusivity clause in a part time contract would be treated the same as in a zero hours contract should it be challenged in an employment tribunal.
As always, it is essential to get proper advice when drawing up contracts of employment. Zero hours contracts have been a huge benefit for many small and growing businesses, and fortunately their use has not been banned entirely, but their role now needs to be reassessed and their value carefully considered for each new employee taken on and a zero hours contract may no longer be the most appropriate basis of employment in the future.
Many of us look forward to a summer holiday and a well-earned break. We’re just about to come into that time of year when employers will start to see the ebb and flow of their workforce as staff start to take their main holiday. It’s important to remember that annual leave is much more than just a benefit; it’s essential for the long term health and well-being of your staff. As an employer, you probably recognise that many of your employees are working long and hard, perhaps a reflection of the current recession and harder times. Therefore it’s important and in fact essential that you ensure your team take their annual leave. A holiday gives a much needed boost to often tired workers. When working long hours over extended periods of time, mistakes are made and accidents can occur. It is often the case that motivation and morale can also be low. By encouraging staff to take time off for perhaps a week’s holiday, preferably two means that those run down batteries can be re-charged! It is generally a common theme that people return with new-found inspiration, refreshed and motivated which in turn really can energise and benefit a business.
The entitlement to paid annual leave is governed by the Working Time Directive Legislation. This provides all full time employees with a minimum of 28 days leave per year, including public and bank holidays. This is then pro-rated for part time employees – and this is where the complication for many starts.
We find that one of the biggest on-going issues for our clients is calculating part time annual leave entitlements. It can be complicated so here we provide you with some easy to understand golden rules to enable you to choose the method most appropriate for your business needs.
Rule 1: You cannot treat part time employees any less favourably than your full time staff. Entitlements can be pro-rated, but the base benefit must be the same.
Rule 2: Work out your full time weekly hours as this is the anchor point. If you have two very different categories of staff such as those at head office and those in retail outlets, you may choose to have different full time hours for each category.
Rule 3: Calculate the FTE (full time equivalent) of each member of staff based on your full time hours for that category. Here’s an example: If your full time hours are 40 and someone works 30 hours, they are a 0.75 FTE if your full time hours are 35 and someone works 30 hours, they are a 0.86 FTE.
Rule 4: Following Rule 3 work out leave entitlement. As both annual leave and public & bank holidays are pro-rated, assuming a full time employee has 28 days, in the first example the employee would have 21 days leave. In the second example the employee would have 24 days. The main thing to note with this first calculation is that the day is a normal length working day for that category i.e. 8 or 7 hours if it is a 5 day working week, Monday to Friday.
Rule 5: Perhaps you are managing annual leave in hours? In some organisations, where staff work a different number of hours on each day, it may be easier to manage annual leave in hours, so that in this example both employees have 168 hours leave (first employee 21 days x 8 hours) and (second employee 24 days x 7 hours). In this case if they take a day off and they would only normally work 6 hours on that day, then it is 6 which is deducted not 7 or 8 for a whole day.
Rule 6: Be clear on the Bank Holidays! Bank holidays notoriously cause a problem. The key is to record every absence whether it is a personal holiday or a public holiday. So if the employee usually works 8 hours on a Monday and Monday is a bank holiday, you deduct 8 hours (or 1 day) from their leave entitlement. If the employee does not usually work on a Monday, there is no change to their leave record.
Rule 7: Sunday working; where an employee works short days on a Sunday, it is important to ensure that they don’t use all their annual leave entitlement to take every Sunday off! Therefore it is essential that your policy is well written restricting this practice so that may mean no more than 6 Sundays per year and that your managers are trained to manage holiday absence efficiently and ensure adequate cover for the business.
Rule 8: Where an organisation has staff who do not work regular weekly hours, managing holiday accurately is much harder. We recommend accruing holiday based on actual hours worked on a weekly basis. The accrual rate is determined by your full time hours and normal leave entitlement. Then for every hour worked, holiday is accrued. If the person works every week (or most weeks) then they need to be able to take their leave. If they are a temporary member of staff or only work periodically, then it may be better to pay them each month for the holiday they have accrued. This should show as a separate line on their pay slip.
Getting holiday right is important, legally, morally and for the sake of the business. We recommend you ensure you have a clear policy which supports your business needs and culture. Understand what you have to do and clarify what you want to do. Communicate it to staff and if in doubt, seek advice. Ensuring staff use their annual leave entitlement is for the long term health of your business as well as for good morale. Oh, and don’t forget to lead by example. You are no good to your business if you are exhausted. On that note, have a good holiday; we’re off to book ours!
For more information, or for help with drafting your annual leave policy, contact us on 01923 504100 or at firstname.lastname@example.org
Is your business a “Yes you can” or do you suffer from “No you can’t”?
As an HR support specialist, I never know what is going to happen when I pick up the phone. In the past week, we have had three potential clients contact us for support with HR issues:
So what determines Yes vs No.
The answer is a contract of employment. This legally required document, if written properly, gives employers a mandate to manage poor performance, to place employees on garden leave and to manage sickness absence and pay Statutory Sick Pay.
Without the contract of employment, there is lack of clarity, no mandate for strong people management decisions and neither the employee nor the employer knows where they stand over certain issues.
When employers ask for help with an issue, the first question is….. What does your contract of employment say? The typical response is…… We don’t have one.
Even if you only have 1 employee, you are legally obliged to give them a written statement of their terms and conditions aka A CONTRACT OF EMPLOYMENT.
There are several reasons why an employee may be working from home, but in this article, we ignore the reasons behind home workers and focus on things an employer must consider to ensure legal compliance and business effectiveness of the arrangements.
A home worker must have a workspace which is fit for purpose. Whether the role involves a computer at a desk or a telephone, paper and pen, the employer must make sure that the employee has adequate seating, lighting and desk space as required.If the employee has stock or samples to store or move around, the employer must again ensure that this is done safely and with no risk to the employee or other people at the house.
Although the duty of care falls to the employer, there is an obligation on employees to play their role in establishing and maintaining a healthy and safe working environment. They must ensure that they make use of facilities provided and inform their employer if there are any changes in circumstance.
As well as the physical environment, employees must ensure that they psychological environment is appropriate for work. An employee must be able to fully focus on the job while they are working. They should not have young children or large dogs running around or a constant flow of callers to the house. Employees are expected to be undistracted and to dedicate themselves 100% to their job, during their working hours.
Communication is essential to making a home worker relationship effective. Whether one member of the team or the whole team works remotely, it is vital that regular communication channels are established and maintained. Ideas include weekly team calls, group emails, newsletters and monthly meetings. The exact contents of these will vary depending on the nature and culture of the business, the type of work being done from home and the personality of the home workers themselves. The purpose of the communication is twofold: to ensure that the employee is engaged with the business and therefore wants to contribute to it’s success; and that the work delivered is what is expected and required by the business. Home working can be isolating and good communication will lead to better outcomes.
Other considerations include the type of work being done. Is the home worker merely based at home for contractual reasons and then travelling around to effectively do their role? Or does the role require the employee to be sat at a desk all day working? What support and training does the employee need? What additional tools do they require to do their role? If they need a car, is one provided in the same way as it would be for an office based employee? If they need internet access or a dedicated phone line, how does this get paid for?
Employment legislation applies equally to home workers as it does to office based workers and compliance with Acts such as the Equality Act, The Working Time Directive and Part-time Workers Regulations all still apply. Does the home-worker have the same terms and conditions of employment? Are their pay and benefits the same as they would be if they were based in the office? Is there someone doing the same job as them based in the office and are the two employees treated equally. The only contractual difference should be their location.
When considering using home workers, consider their home as a satellite office. You don’t have the right to turn up unannounced, but they are employees and should be managed in a fair and equitable way, helping the business to achieve it’s goals.
For further information and support on employing home based workers, please contact DOHR on 01923 504100 or at www.dohr.co.uk