Government Proposes Biggest Reform of Employment Law in 20 Years

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In July 2017, Matthew Taylor published his Good Work report into the implications of new forms of work on worker rights and responsibilities and employer freedoms and obligations.

The government has now published a Good Work Plan proposing a number of changes to employment law, and draft legislation for some of the changes has already been released.

Changes Coming Into Force on 6 April 2020

On 6 April 2020, the following employment law changes will be made as part of the Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018.

  • Break in Continuity of Employment – The break between periods of employment which breaks continuity will be increased from one week currently to four weeks. This is likely to have the biggest impact on temporary workers as it will easier for them to accrue the two-year qualifying service to engage unfair dismissal rights. Employers will need to track temporary employees more closely and take far more care in ending temporary assignments when an individual has qualifying service.
  • Holiday Pay Calculation of a Week’s Pay – For calculating a week’s pay for holiday pay purposes, the reference period for variable pay will increase from 12 weeks to 52 weeks. This should be a change welcomed by employers as holiday pay calculations will be less exposed to short term variations in pay.
  • Agency Workers – The Agency Workers (Amendment) Regulations 2018 will abolish the exemption which excludes agency workers from the right to equal pay with comparable direct employees if they have an employment contract with their agency which guarantees pay between assignments (commonly known as the Swedish Derogation).

The Employment Rights Regulations 2019

The government has proposed the following changes as part of the Employment Rights (Miscellaneous Amendments) Regulations 2019, which currently has no universal commencement date.

  • Written Statement of Terms and Conditions – Employers will be required to provide employees with their written statement of terms and conditions on the first day of work (rather than within two months) and this right will also be extended to workers. Employers will need to review their recruitment processes and ensure employment contracts are being issued to employees and workers on or before their first day.
  • Aggravated Conduct Penalties – Employment tribunals can currently issue penalties against an employer for aggravating conduct. These are hardly ever imposed. The government proposes to increase the limit on the penalties from £5,000 to £20,000. This will come into force on 6 April 2019.
  • Information and Consultation Thresholds – To encourage engagement in the workplace, the percentage required for a valid employee request for an information and consultation agreement governing how their employer will consult about economic and employment-related matters will be lowered from 15% to 2% of the workforce.

Additional Changes

There are other major proposed changes to employment law within the Good Work Plan which are not currently part of proposed legislation.

  • Test for Employment Status – Currently, the employment tribunals and the HMRC take different approaches to considering whether an individual is an employee, a worker or is self-employed. It is entirely possible that someone might be, for example, a worker for employment law purposes but self-employed for tax purposes. The government is proposing that the same status test is used for employment law and tax purposes and that these tests are ‘streamlined’. Harmonising and clarifying the employment status tests should hopefully make it easier for employers to determine whether an individual is truly self-employed. Employers will need to review all contracts with supposed ‘contractors’ to determine whether the contractor retains their self-employed status under the new employment status rules. This may lead to more individuals being added to payroll and/or renegotiation of contracts.
  • Right to Request Fixed Working Pattern – The government is proposing a right to request a fixed working pattern for those who do not have one. Entitlement to the right will be after 26 weeks on a non-fixed pattern. There is likely to be considerable discretion for the employer to refuse the request, akin to flexible working requests.
  • Tips – A ban on employers making deductions from staff tips.

The government is billing the Good Work Plan as the biggest reform of employment law in 20 years. However, the plan has stayed away from making any detailed proposals regarding the larger changes proposed by Matthew Taylor to tackle the increasing perceived unfairness and unlawfulness within the gig economy and for zero hours workers. It remains to be seen how the government will tackle these pressing employment concerns. At present, the governments proposed changes represent more of a tinker with existing legislation then any form of whole scale reform.

For more information, please contact Sarah Martin on 08899 136 091 or Caitlin Anniss on 07909 683 938 at Narrow Quay HR. 

Voluntary Reporting on Disability, Mental Health and Wellbeing

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In October 2017, “Thriving at work: the Stephenson/Farmer review of mental health and employers” was published.

Following this, the Department for Work and Pensions and the Department of Health and Social Care have published a framework to support employers to voluntarily report disability, mental health and wellbeing in their workforce.

The framework is entirely voluntary in nature and aimed at larger employers with over 250 employees. However, smaller employers are also encouraged to engage with the framework as well.

The purpose of the framework is to drive transparency in organisations. Employers are encouraged to provide a narrative explaining the action taken to recruit and retain disabled employees and provide support in relation to mental health and wellbeing in the workforce.

The Stephenson/Farmer review suggested that poor mental health was costing employers between £33 billion and £42 billion per year (namely in relation to sick leave, staff turnover and impact on productivity).

It appears that the issues of disability and mental health and wellbeing is increasingly under the spotlight and it is possible that reporting will become mandatory in the future (although this is not suggested at present). Employers may decide to voluntarily report as a point of best practice and to demonstrate transparency and a commitment to addressing issues arising out of disability and mental health in their workplace. Further guidance regarding reporting is to be published shortly.

For more information, please contact Sarah Martin on 07799 136 091 or Caitlin Anniss on 07909 683 938 at Narrow Quay HR. 

Can Staff Take Their Leave When Payment in Lieu Is Payable?

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Three recent cases highlight why you should encourage your employees to use their holiday entitlement.

The purpose of Article 7 of the Working Time Directive (2003/88/EC) (the WTD) is to ensure that EU Member States implement domestic legislation that grants workers entitlement to paid annual leave of at least four weeks per year. Article 7 also states that paid annual leave cannot be replaced by payment in lieu – except where the employment relationship is terminated.

The Cases

Kreuziger v Land Berlin and Max Planck v Shimizu: In these separate cases, the claimants were seeking to be paid in lieu of untaken annual leave on the termination of their employment. In Mr Shimizu’s case, he was claiming payment in lieu for untaken holiday entitlement for the current year as well as the preceding year.

Stadt Wuppertal v Maria Bauer and Volker Willmeroth v Martina Brobonn: In both cases, the claimants were the sole heirs to the estates of their late husbands who had died while in employment. They were claiming payment in lieu for annual leave entitlement that their husbands had not taken before their deaths.

Findings

In all three instances, the ECJ have emphasised the importance of paid annual leave as a principle of EU social law from which there may be no derogations. The ECJ also reiterated the aims of the WTD and Article 31(2) Charter of Fundamental Rights of the European Union (the Charter) being to ensure that workers have sufficient rest from the work they do in their jobs and to have a period of relaxation and leisure.

On termination of employment, including when terminated by the death of the employee, domestic legislation should not provide for automatic loss of annual leave entitlement. The employee, or the heir to their estate, should be entitled to payment in lieu for any such untaken annual leave.

Annual leave entitlement from an earlier leave year is not automatically lost just because the employee failed to request to use it. To be able to show that payment in lieu for such leave is not owed to the employee, the employer must be able to demonstrate that they provided the employee with the opportunity to take the leave and made them aware of the circumstances under which the entitlement would be lost.

Although these findings relate to German cases, the effects are relevant to the UK as the ECJ confirmed in all three instances that the rights to paid annual leave under the WTD and the Charter are directly enforceable between private persons and National courts must interpret domestic legislation in accordance with both the WTD and the Charter. Where domestic legislation is entirely incompatible, the WTD and the Charter take precedence.

Best Practice

The findings suggest that untaken annual leave may not automatically lapse at the end of the holiday year, raising the possibility that on the termination of employment, an employee might be entitled to be paid in lieu of their total accrued entitlement (whether accrued in the current or previous leave years).

For the entitlement from earlier leave years to lapse, employers need to be able to show that they have provided their staff with the opportunity to take their paid annual leave. What exactly would qualify as sufficient ‘opportunity’ is not totally clear, however the ECJ noted that employers are required in particular ‘to ensure, specifically and transparently that the worker is actually given the opportunity to take the paid annual leave… by encouraging him, formally if need be to do so while informing him accurately and in good time…and that if he does not take it, it will be lost.’

We would therefore recommend that employers ensure through their policies and HR systems that employees are aware of the need to take annual leave in the leave year it arises, any policy on carry over and  the procedure for booking and taking that leave. We would also recommend including a reminder of the consequences of not taking their annual leave entitlement in these communications.

Employers may choose to have a policy that requires employees to use up accrued holiday after notice of termination has been served. Whether such leave is actually taken will still need to be monitored. These decisions will only apply in respect of the four weeks annual leave granted under the WTD and implemented into domestic law by the Working Time Regulations 1998 and will therefore not apply to the extra 1.6 weeks granted under the Regulations and any contractual holiday entitlement over and above this.

For more information, please contact Sarah Martin on 07799 136 091 or Caitlin Anniss on 07909 683 938 at Narrow Quay HR. 

Workplace Investigations – Weighing up the Evidence

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Hargreaves v Manchester Grammar

Mr Hargreaves had been employed by Manchester Grammar (School) as a teacher since 1 September 2005. In March 2016 a pupil (Pupil A) alleged that Mr Hargreaves had grabbed him, pushed him against a wall and put his fingers to his throat. Prior to the allegation from Pupil A, Mr Hargreaves had not been subject to any formal disciplinary action.

As part of an investigation into the allegations, various pupils and teachers were interviewed. Two pupils corroborated Pupil A’s account and one teacher noted that Pupil A had appeared upset when reporting the incident. However, two other pupils who were interviewed had no recollection of anything unusual.  When the investigating officer interviewed the two teachers named by Mr Hargreaves as potential witnesses, one said she had not been in the area at the relevant time and the other said she had not seen anything unusual. The evidence of the pupils and teachers who had seen nothing were not presented to the disciplinary panel or Mr Hargreaves.

Following the hearing, Mr Hargreaves was dismissed for gross misconduct on 17 June 2016.

Mr Hargreaves brought a claim of unfair dismissal to the Employment Tribunal (ET) and the ET found his dismissal to be fair. Mr Hargreaves appealed to the Employment Appeal Tribunal (EAT) on the basis that, taking into account the career-changing impact of the allegation, the ET had erred in respect of the significance of the evidence gathered from those who had reported seeing nothing unusual.

Mr Hargreaves argued that if Pupil A’s allegation was true it would be highly likely that someone in the vicinity would have noticed whereas, if his account of events was true, those close by would not recall seeing anything untoward.

The Decision

The EAT dismissed the appeal, holding that it was within the band of reasonable responses for the School to decide not to put forward the evidence of the witness who had seen nothing and to dismiss Mr Hargreaves.

The EAT commented that in investigating the incident it wasn’t that the School had not pursued lines of inquiry, it was that they had found that those lines did not have anything to add. The statements given by the witnesses had been considered and the School had reasonably concluded that the evidence  was immaterial and could not assist either the Claimant or the disciplinary panel.

Best Practice

While this decision provides some comfort to employers who have properly assessed the evidence gathered during investigations and decided that some is not relevant, we would still advise that it is in an employer’s interest to present all evidence. Choosing not to do so creates an unnecessary risk of litigation and a finding of unfairness.

This approach is in accordance with the ACAS Code of Practice on disciplinary and grievance procedures, which provides that in conducting a disciplinary hearing it would normally be appropriate to enclose copies of any written evidence, which may include any witness statements, with the hearing invitation.

For more information, please contact Sarah Martin on 07799 136 091 or Caitlin Anniss on 07909 683 938 at Narrow Quay HR. 

GP Recruitment and Retention – Top Tips For Getting It Right For Your Healthcare Practice

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Many healthcare practices are facing challenges around recruitment and retention. In particular, we are seeing an increase in the number of experienced GPs retiring early leading to an increase in recruiting less experienced salaried GPs.

Getting the recruitment process right is crucial and will undoubtedly be an important part of any Practice Manager’s role. However, how best to undertake this exercise still remains something of a challenge. In this article, we provide our five top tips for getting it right:

1. Define the Role

Having a clearly defined role is an essential starting point for a good recruitment process. The first step is to analyse the job. Consider what tasks the jobholder will be required to do and think about how the role fits into the overall healthcare practice. Once you have done this, you can draft the job description and person specification documents. Try to remain focussed on the requirements of the role and the specific competencies you want from the individual. And remember your job description and person specification should be realistic and not a wish list.

2. Attracting Applications

Review the techniques you use to you attract applicants and think creatively to maximise your chances of getting the best applicants. The local Facebook groups for example could be a good source of advertising for some roles. Consider whether an employee referral scheme which incentives staff to refer candidates might be worth considering. Research has shown that the wording of some adverts appeals more to men than women. Perhaps think about testing differently worded adverts to see what gets the best response.

3. Managing Applications

We all have unconscious biases which we are unaware of and may not want to admit to. These can reveal themselves in any number of ways, from unconsciously favouring someone who went to the same University as you or being put off  someone because of their accent. The recruitment process can be a fertile ground for these biases to come to the fore and can mean your healthcare practice misses out on the best candidates. Worse still, it could expose your practice to risks of discrimination claims.

Think carefully about how your practice deals with applications. There are a number of easy changes that a practice can make. For example, try, as far as possible, to remove any information that might illicit a bias, such as name, address and age and have more than one person undertake the shortlisting and potentially use a third as a final check.

4. Effective Interviews

Most recruitment processes involve an interview. Structured interviews where the interviewer or panel agree the questions in advance will help to keep the questions on track and avoid the risk of going off track into areas that could cause difficulties, such as discussions around health or childcare. Try to reframe the interview as a fact finding process rather than a decision making one to take some of the pressure off and think about the time of day you hold interviews – research has shown that those interviewed later in the day after a string of earlier interviews are at a disadvantage.

5. The Offer Letter and Contract

Think carefully about the wording of your offer letters. Take specialist legal advice to ensure that your offer letter and any contractual documentation are up to scratch and fit for purpose. These documents are designed to set out clearly the basis of the employment relationship but also to protect the practice, so it is important that you have well drafted and user friendly documents in place that are regularly reviewed.

Our Narrow Quay HR consultants work together with you and your practice, providing you with a flexible range of HR advice and solutions to assist your day to day business which includes recruitment and retention challenges.

For more information, please contact Sarah Martin on 07799 136 091 or Caitlin Anniss on 07909 683 938 at Narrow Quay HR. 

One Year In

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This week we are celebrating Narrow Quay HR’s one year anniversary – thank you to all of our clients and contacts, it’s been great working with you.

It’s been a busy first year at Narrow Quay HR, and we’ve enjoyed working with a range of clients including schools, GP surgeries, businesses and charities. We have been particularly busy with investigations, which have taken us all over the country, and have provided support to panels at a range of hearings. We’ve supported clients with their HR projects, helping with both day-to-day issues and larger, strategic projects. We’ve also delivered training to clients too; on Unconscious Bias, Appraisal skills and Essential HR for Line Managers.

We look forward to a busy year two!

Is It Legal To Monitor Employee Behaviour?

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In a recent case, it was held that the covert surveillance of employees by their employer, who set up CCTV cameras to monitor suspected thefts, was an infringement of those employee’s rights to privacy.

Employers looking to monitor the conduct of their employees – particularly those using covert recording – should consider their actions carefully, particularly in light of the requirements of the General Data Protection Regulation (GDPR), which becomes law on 25 May 2018.

Read the full article by Mark Stevens, VWV

Narrow Quay HR are specialists in advising HR Directors, Managers and Business Leaders in all forms of employee rights, engagement and management. Contact us to discuss your needs.

What’s New In Employment in 2018

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Employment : What’s new in 2018, after 2017, a significant year for employers and employees, with the Taylor Review and the Supreme Court’s ruling on tribunal fees taking centre stage.

Employment status will continue to be a hot topic in 2018, with individuals designated as self-employed by their employer seeking the protections offered by worker or employment status. We expect the Government to provide a response to the Taylor Review on modern employment practices and this is likely to impact those working in a gig economy industry.

The ECJ’s decision that workers who are wrongly informed they are not entitled to holiday pay can carry holiday rights over indefinitely and also be paid in lieu for any untaken holiday during their entire period of employment on termination. A Court of Appeal decision will be highly relevant to those who have been classified as self-employed during a contract but are then subsequently shown to be workers or employees.

In April, the first of the mandatory gender pay gap reports for large private and voluntary sector employers will be due. This follows the obligation on large employers to publish an annual report containing data on their gender pay gap, which was introduced last year. Public sector employers that fall within the remit must report by 30 March 2018.

Of course we will also see the introduction on 25 May 2018 of the new EU General Data Protection Regulation (GDPR) which covers a host of changes in regulations regarding the collection and holding of personal data. Some of the considerations include, but are not limited to:

  • greater penalties for non-compliance
  • increased requirements around record keeping and reporting
  • the requirement to include additional information in privacy notices and contracts with data processors
  • increased information security
  • a far narrower definition of consent
  • changes to the rules around the handling of subject access requests
  • new rights for individuals in relation to their data

Get in touch with us to discuss your current and future employment challenges. We’d be delighted to help.

Acas New Pregnancy and Maternity Discrimination Guidance

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Acas has published guidance for employers on how to prevent pregnancy and maternity discrimination at work. Several measures are recommended, including:

•          Developing a policy that outlines the responsibilities and rights of pregnant employees (or those on maternity leave), including assurances that they will not be dismissed or made redundant as a result.
•          Ensuring that employees on maternity leave are aware of all promotion and training opportunities.
•          Making reasonable adjustments to protect the health and safety of a pregnant employee and their unborn child.
Acas published its new guidance after receiving 14,000 calls about pregnancy and maternity discrimination in the last year (a 10% increase compared to the previous year).
Get in touch for more assistance and guidance that compliments this article.

Autumn Budget 2017 : Key Points For Employers

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The Autumn Budget 2017 has highlighted a number of key points that Employers need to consider for their organisations and people.

Wages

The Government has confirmed that it has accepted the recommendations of the Low Pay Commission (LPC) for increases to the national living wage (NLW) and the national minimum wage (NMW). Accordingly, from April 2018 the Government will increase the NLW, which applies to workers aged 25 and over, by 4.4% from £7.50 to £7.83. The LPC has estimated that this will benefit over 2 million workers. At the same time, the NMW rates will be increased as follows:

  • from £7.05 to £7.38 for 21 to 24 year olds;
  • from £5.60 to £5.90 for 18 to 20 year olds;
  • from £4.05 to £4.20 for 16 and 17 year olds; and
  • from £3.50 to £3.70 for apprentices.

Taxation

In accordance with its commitment to raise the personal allowance (PA) to £12,500 and the higher rate threshold (HRT) to £50,000 by 2020, the Government has announced that in the 2018/19 tax year the PA and HRT will be increased to £11,850 and £46,350 respectively. The Government has also announced that, with effect from April 2018, there will be no benefit in kind charges on electricity that employers provide to charge employees’ electric vehicles. The report further details a number of changes the Government will make to the taxation of employee expenses following a call for evidence that was published in March 2017.

Employment Status

The Government has stated that it will publish a discussion paper as part of its response to the Taylor review of employment practices, which will explore the case and options for longer-term reform to make employment status tests for both employment rights and tax clearer. It has acknowledged that this is an important and complex issue, and it will therefore work with stakeholders to ensure that any potential changes are considered carefully.

Source: UK Government

The Chancellor of the Exchequer delivered his 2017 Autumn Budget speech to the House of Commons on Wednesday 22 November. On the same day, the full Budget report was published by the Government.

Please contact us for help with understanding and implementing any of the key points above.