Despite the advent of automated clocking in systems and time recording Apps, many employers still ask employees to complete timesheets manually as a means of logging their time – and also to record overtime.
Every so often, an employer may have an issue that an employee is not completing their timesheet accurately and specifically that their start and finish times do not accurately reflect the hours worked.
In some cases, the employee may be a field based employee and arguably it is easier to be a bit creative with the booking of hours than an employee who is 100% site based.
Falsification of timesheets is a serious issue and it can be a serious issue even if we are only talking about a few minutes and in many cases is a disciplinary issue. The actions of the employee are basically a form of fraud or even theft because the employee is stealing time from the business. It also amounts to dishonesty and in terms of a possible dismissal, it is a conduct issue because it is a deliberate act to claim monies from the business in respect of time that hasn’t been worked.
In the first instance, as with any other conduct related issue, the employer must investigate. There may be a perfectly acceptable explanation – there may have been an agreement or in the case of field based employees, there may have been issues with their vehicle breaking down, heavy traffic, having to go somewhere to pick up spare parts etc. Or there may be extenuating circumstances where the employee had to leave early.
After investigating, it may be apparent that an offence has not been committed but alternatively, there may be grounds to proceed to a disciplinary hearing and one possible sanction may be a gross misconduct dismissal.
If the employee is dismissed, it is impossible to say whether this would be deemed to be fair or unfair dismissal at an Employment Tribunal because this will depend on a multitude of factors based on whether the employer acted reasonably, as well as
The employee’s previous work record
– Was a proper procedure followed
– Had he/she previously been warned
– Are rules about timesheet discrepancies treated in a consistent manner
– Was it clear that timesheet falsification was regarded as a disciplinary issue as well as considering any possible evidence.
If the employee argues that their van broke down or they were held up in traffic, it is easy to establish. Similarly, the vehicle may be fitted with GPS or some form of tracking which can evidence their start and finish times.
Similarly, CCTV may be available.
It is often argued that GPS tracking and/or CCTV cannot be used and would be inadmissible evidence. This will not necessarily be the case and most employers have clauses in contracts of employment that make clear that CCTV or vehicle tracking is in place and invariably, the clause will say that the Company reserves the right to use CCTV footage and/or vehicle tracking in the course of disciplinary proceedings.
In some businesses, there may be an unwritten understanding that people do finish a few minutes early and no action is taken and if this is the case, it may be difficult to discipline an employee if it can be proved that it has become “custom and practice”.
There always used to be an arrangement – and it still applies in some sectors to-day and it is commonly known as “job and knock”. This is where an individual is given a job to do – say on a Saturday morning – and the employee is told that they can book a certain number of hours regardless of how long the job may take. So, an employee might do the job in an hour but has been authorised to book 4 hours.
It is still a potential disciplinary issue if an employee finishes a couple of minutes before their scheduled time because they are not working their contracted hours and they are potentially leaving early without authorisation. It would definitely be a serious issue if the job involved customers – say in Retail or Hospitality where the customer comes in 10 minutes before the finish time and a potential customer has to be turned away. Retail and hospitality sectors would definitely regard that as a disciplinary issue.
Most Companies would take the view that this is a potential disciplinary issue and it would present itself as the employee having booked until a certain time but left prior to that time so the times on the timesheet do not reflect hours worked. Timesheet falsification also presents itself as an employee claiming to have worked overtime hours that were never worked or have been exaggerated.
There are no right or wrong answers and each case will be determined based on the specific circumstances but it is important that a Company adopts a consistent approach. It will also be determined by consistency in approach, fairness of the interpretation of any policy or procedure and whether the Company has dealt with the situation in accordance with their disciplinary procedure.
Although this has concentrated on falsification of timesheets, the same principles would apply if an employee was falsifying their expenses.
If you want advice regarding any of the issues raised, either call 07885 714771 or e-mail – adrian@abhrsolutions.co.uk
]]>It is not uncommon for the circumstances of a business to change and as a consequence, it is necessary to withdraw a job offer.
The process of withdrawing a job offer is not without risk and will depend on the circumstances. In considering the process of withdrawing a job offer, it is important to understand that job offers can take various forms – for instance
Verbal job offer – an offer communicated verbally but without any further follow up correspondence in writing and specifically, no details of terms and conditions
Conditional job offer – an offer is made but it is conditional on specific requirements which might include references, DBS clearance, evidence of qualifications, health questionnaire etc
Unconditional job offer – an offer is made and effectively there are no conditions attached and often, if the job offer has been accepted, it is deemed that the contract is in place on the concept that offer plus acceptance equals contract.
It is not uncommon for a job offer to be made subject to the employee completing some form of pre-employment medical questionnaire. If an employee declares a medical condition on the form and the employer decides to withdraw the job offer on the basis of the disclosure, it is possible that the employer could be accused of disability discrimination if the condition that has been declared is such that it is afforded protection for disability discrimination – for instance Arthritis, Mental health conditions such as bi-polar but there are numerous other conditions.
In this situation, the employer must be aware of the possible risk of withdrawing a job offer and exercise caution.
If an individual believes that the job offer has been withdrawn due to a protected characteristic such as age, disability, sex/gender, race, religion, sexual orientation, the employee is likely to have a potential discrimination claim which would be heard by an Employment Tribunal.
It is also exceptionally high risk for an employer to withdraw a job offer in the event of pregnancy. This would be where in the time that has elapsed between making the offer and the employee starting, the new employer has learnt that the individual is pregnant and withdraws the job offer. Suffice to say – high risk.
In some employments, the reference must be provided prior to the employee commencing but invariably, the employee has already started when the reference is received.
Where the employee has not started but prior to commencement, a poor reference is received, the employer would be within their rights to withdraw a job offer if the offer was conditional on a satisfactory reference and the reference is deemed unsatisfactory. However, if the reference suggests that the employee had a high absence record due to mental health issues or a certain medical condition, proceed with extreme caution and be mindful of the potential risk of disability discrimination.
The worst scenario from the employee’s perspective is that they have resigned from a job where they had been employed for quite a long time and their prospective new employer withdraws the job and their old employer is under no obligation to allow the resignation to be rescinded. They are now without a job.
In that situation, the employee would be deemed to have suffered loss and in the event that this proceeded to an Employment Tribunal, these losses would be taken into consideration.
The counter argument is that a job offer is withdrawn prior to the employee having resigned from their previous employment and the employee has not suffered loss.
Similarly, if an individual has been out of work and then gets a job which is subsequently withdrawn, they have not suffered considerable loss although they may argue that when a job offer was made, they decided not to look at other opportunities which could have led to a job offer or could have turned down other job offers.
No, but it is considered good practice. If there are genuinely compelling commercial business reasons for a job offer to be withdrawn IE loss of a major contract, investment or funding withdrawn etc – it makes sense for the employer to be honest and transparent about the reason for the job offer being withdrawn.
If an employee believes that a job offer has been withdrawn and all the conditions have been met IE references, medical questionnaire etc, the likelihood is that the employee would be able to bring a claim for breach of contract.
If the offer is withdrawn and the employee believes it is connected with a protected characteristic – race, sex, disability etc, the employee would probably bring a discrimination claim.
Such claims would be heard by an Employment Tribunal.
In conclusion, withdrawing a job offer can be quite a minefield and depending on the circumstances can give rise to claims for breach of contract and/or discrimination. It is therefore sensible for employers to seek advice prior to withdrawing a job offer so that the possible risk can be assessed.
If you want advice regarding any of the issues raised, either call 07885 714771 or e-mail – adrian@abhrsolutions.co.uk
]]>As part of the phased implementation of a legal change in 2024, employers with a holiday year running from January to December will now be able to use the new method of annual leave accrual and rolled-up holiday pay for irregular hour and part-year workers.
Effective January 2025
Tribunals to have the ability to uplift compensatory awards to employees by up to 25% if a business has failed to follow the statutory code of practice introduced in July 2024.
Effective January 2025
National Living Wage will increase to £12.21 per hour and other increases as follows
| Rate for 18 – 20 year olds | £10.00 per hour |
| Under 18 | £7.55 per hour |
| Apprentice | £7.55 per hour |
Effective pay periods on or after April 1, 2025.
The following increases will apply
Statutory Sick Pay increases to £118.75 per week
Statutory Maternity Pay (SMP) and other family leave payments including statutory paternity pay etc will increase to £187.18 per week.
Effective April 6, 2025
Under the Neonatal Care (Leave and Pay) Act 2023, parents of babies who are admitted to hospital before 28 days old and for at least one week would get a maximum of 12 weeks leave, paid at the statutory rate, in addition to maternity/paternity leave.
Effective April 6, 2025
Under the Paternity (Bereavement) Leave Act 2023, fathers and non-birthing partners would be entitled to paternity leave from day one of employment if the mother of the baby dies. It is also intended to extend paternity leave to the same length as maternity leave in these circumstances.
Effective date – to be confirmed.
Proposed changes to restrictions including a requirement for all children to have a permit, and increasing maximum working hours.
Effective date – to be confirmed
Under the Domestic Abuse (Safe Leave) Bill, employees suffering from domestic abuse will have a right for up to two weeks’ paid leave.
Effective date – to be confirmed
Under the Office of the Whistleblower Bill, the independent office will set, monitor and enforce standards for the management of whistleblowing cases. It will provide disclosure and advice services, direct investigations, and order redress to whistleblowers providing employees and individuals with greater protections.
Effective date – to be confirmed.
It is important not to get confused with the proposals being set out by the Labour Government for changes which are still going through a consultation phase and it is still anticipated that these changes will be implemented for Autumn 2026.
The major change here is the removal of the 2 years qualifying period before an employee can bring a claim for unfair dismissal but it is now looking as if there will be a statutory probation period of up to 9 months. However, it is too premature to start to amend the wording of contracts because the devil will be in the detail.
Other features of the Employment Rights Bill will include changes to zero hours contracts, statutory sick pay from day one, increased rights in respect of flexible working, outlawing fire and re-hire practices and the time limit that an employee has to bring claims to an Employment Tribunal will be extended from 3 to 6 months.
However, this is still very much “work in progress” and as ever, the devil will be in the detail but it is important to be aware that change is on the horizon.
There is considerable speculation across the media about the changes and quite a bit of sensational headline grabbing – be sure that what you are reading is accurate.
Adrian Berwick offers HR support to SMEs and GP Surgeries and if you want any advice or guidance on the issues raised in this article, please either contact me on 07885 714771 or adrian@abhrsolutions.co.uk
]]>Some tattoos might be hidden but increasingly more people are having visible body art on various parts of the body including face, neck, head, legs etc.
Also, tattoos are very much a case of…you either love them or you hate them. Tattoos also divide opinion in the sense that one school of thought says that they are part of a society where we are free to express ourselves and another school of thought where people are quite simply anti-tattoo.
But what happens in the workplace? From an HR Support perspective, there has been an increasing demand from employers for advice on tattoos and specifically whether it is discriminatory not to employ someone with a tattoo or can they ask an employee to cover up a tattoo?
No – having a tattoo is not seen as a form of protected characteristic so this means that if an employee comes for an interview and has visible body art or tattoos, the employer can legitimately reject the candidate for that reason, unless it could be argued that the tattoo is related directly to religion or race in which case, the employer could be accused of discrimination.
Yes – this is quite common and you can ask an employee to wear long sleeve shirts etc. A lot of Companies relax dress codes in Summer months allowing employee to wear shorts which exposes tattoos which might otherwise not be seen.
It is very common for an employee to be asked to cover up tattoos where the employer takes the view that it is not appropriate for their job role, or the sector they work in or customers/clients might find it unacceptable. You tend not to see employees with tattoos in management consultancy, professional services – generally speaking, tattoos are perceived to be more blue collar than white collar in the workplace but that’s changing and the blue and white collar split is outdated.
Some employer take the view that tattoos and/or body art are not consistent with their brand image and don’t look professional and might not be considered appropriate by clients /customers. When employers have photos on their websites of employees, they are entitled to ask that the employee doesn’t show tattoos on the website picture.
It depends on whether the employee has less than 2 years service.
Where the employee has less than 2 years service, the employer could terminate as long as there is no risk that the tattoos are linked to race or religion. If there is no discrimination risk, the employee cannot bring an unfair dismissal claim so the employer could terminate with notice but it would be prudent to assess the risk prior to dismissal.
If the employee has over 2 years, the risk is far greater and an employee could bring a claim for unfair dismissal. It would be a high risk call for an employer to dismiss purely on the grounds of a tattoo and if so, it would probably be a SOSR – some other substantial reason – dismissal. The likelihood is that the employee would bring a claim and if the dismissal has not been well managed and a procedure followed, the Tribunal would probably find in the favour of the employee.
But, after the new proposed changes to legislation come into effect – probably in Autumn 2026 – it won’t make any difference if the employee has more or less than 2 years service.
No but it is sensible for an employer to set out standards of dress in a handbook or set of guidelines and be clear about what is expected of employees in terms of their appearance. It is perfectly acceptable in a handbook to set out that the Company does not expect tattoos and/or body art to be visible. However, it is important that there is consistency in how this rule is managed.
It is worth noting that many Companies are now relaxing their rules on tattoos because of changing society views.
But we are probably quite a long way away from the BBC News being read by someone with a short sleeve shirt or blouse exposing an array of tattoos.
Attracting and recruiting talent
Where an employer doesn’t like tattoos and/or body art and reject job applicants on that basis, it should be pointed out that they are potentially reducing their chance of recruiting good people because the jobs market is all about attraction and retention of talent and the best candidate for the job may be covered in tattoos.
This whole issue will divide opinion and whilst some people will take the view that tattoos are unacceptable and unprofessional in the workplace, others will take the view that we should see beyond the person and accept people as they are and not be prejudiced – sometimes referred to as unconscious bias.
However, a business is only as strong as how it is perceived by their customers or clients and some employers will take the view that sending an employee to a meeting with visible body art or tattoos is not in keeping with their brand values and does not project a professional image.
Society attitudes are changing but with more tattoo parlours opening up on the high street than any other type or retail outlet, the popularity of tattoos is certainly not declining and if employers decide to avoid recruiting candidates with tattoos, they will find recruitment a lot more challenging and could be missing out on a great talent pool.
Adrian Berwick offers HR support to SMEs and GP Surgeries and if you want any advice or guidance on the issues raised in this article, please either contact me on 07885 714771 or adrian@abhrsolutions.co.uk
]]>Just by way of clarification, these are the published proposals and they are now subject to consultation between Governments, Trade unions and interested employer stakeholders – such as FSB, CBI etc. It is anticipated that the changes will be enacted into law by Autumn 2026.
Currently an employee has to be employed for 2 years before they can bring a claim for unfair dismissal. There will now be no qualifying period effectively making it an entitlement from day one of employment although there is some debate about the likelihood that where employees are subject to a probation period, the ability to claim unfair dismissal will only apply after the probation period has been completed.
This begs the question – how long can the probation period be? There is talk that the probation period cannot exceed 9 months and during this period, an employee can be terminated without following a process. However, an employee could still bring a claim for discrimination if they are terminated during their probation period.
Once we have clarity on the probation period, it is reasonable to assume that all employers will make employment subject to a probation period and the duration of that period will be the maximum allowed under the legislation.
This was a lively topic of discussion and it is proposed that under the new legislation, employers will be required to offer a guaranteed hours contract based on the hours that the employee has clocked up during a 12 week period.
Employees who prefer to stay on a zero hours contract will be able to do so but the change is that they will have the right to request a contract based on guaranteed hours if they want to.
There will be a requirement for the employer to give “reasonable” notice ahead of planned shift changes as well as compensation if a shift is cancelled or ends early.
It is fair to assume that certain industry sectors – specifically hospitality and seasonal production businesses will be making representation about these plans.
Currently an employee has the right to request a flexible working arrangement and the employer can turn down the request on specific business grounds.
The legislation will make flexible working the default option whereby an employer is required to agree to the request unless they can prove the request is “unreasonable”
This may not be a massive shift from the current arrangement because it is likely that if an employer regards the request as “unreasonable”, they will be able to rely on the existing business grounds to justify the refusal but expect more challenge from the employee.
The waiting period of 3 days and the lower earnings limit to receive SSP will be removed. Currently, there is a 3 day waiting period before the payment of SSP.
Currently, qualifying employees get SSP of £116.75 for a maximum of 28 weeks.
This will be a direct cost hit for employers who may experience an increase in frequent short term absence especially absences of 1 or 2 days.
This is not a major change although the entitlement becomes a day one right – currently an employee needs one years service before getting unpaid parental leave.
There will also be a legal right, regardless of service, for an employee to have compassionate leave if a dependent dies.
This will not be a massive impact because the arrangements are for unpaid leave and most employers give this now anyway but some employers offer paid bereavement leave.
A new Agency will be created which will have powers to enforce employee rights such as National Minimum Wage, flexible working, holidays, sick pay whilst also dealing with issues around “gang” labour and modern slavery. This Agency will have “real teeth” according to Angela Rayner and the Government and will have power to prosecute and fine Companies who breach Employment law.
It is assumed that the role of ACAS will remain unchanged.
We can also anticipate that employee rights during pregnancy will be strengthened and also greater protection from dismissal for employees who return after maternity.
Large employers (over 250 employees) will also have to show positive action to address gender pay gaps and offer more support for employee during the menopause.
It was anticipated that there would be a statutory “right to disconnect” meaning that employers couldn’t contact employees out of hours – similar to rights in some European countries but this is likely to be re-visited at a later date.
It was anticipated that there would be an outright ban on “fire and rehire” but this has been slightly watered down. So, “fire and rehire” which is the practice of changing an employee’s terms and conditions and making them less favourable will be banned unless there are “exceptional circumstances”.
This presumably means that a business can change terms and conditions if the alternative is that the business will go bankrupt.
There is much to be done on these proposals and the devil will be in the detail. Also, there is nothing much here that we did not expect after seeing the Labour manifesto.
Until we have more detail, it isn’t wise to rush off and change policies, procedures and contracts but what we can be sure about is that this will result in much more time being spent on HR issues in small businesses and with the extension of rights, employees will have to seek internal redress in the first instance – so employees will use the grievance procedure more.
Any business which ends up in an Employment Tribunal will find that the backlog of cases will be considerable and ACAS will need more staff to manage the inevitable increase in workload and they are already massively stretched.
The plan is that these changes will take effect from Autumn 2026. This might seem ambitious but the will of the Unions will be such that they will not allow this date to slip and the Labour party will want to deliver on these reforms.
Adrian Berwick offers HR support to SMEs and GP Surgeries and if you want any advice or guidance on the issues raised in this article, please either contact me on 07885 714771 or adrian@abhrsolutions.co.uk
]]>From 26 October 2024, the Prevention of Sexual Harassment Act comes into force and requires all employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment.
This legislation follows various high profile issues in the media over the last few years which relate to inappropriate sexual advances and abuse of authority.
In more general terms the employer owes their employees a “duty of care” and such care has always extended to the employer ensuring that the employee is not at risk because of the actions of fellow employees. This new legislation is specific in the area of sexual harassment.
This may seem like a silly question but sexual harassment relates to unwanted advances and inappropriate behaviours and may relate to physical touching, unacceptable sexual innuendo and comments or invasion of personal space. Sexual harassment is also very much based around social media with employees potentially sending inappropriate, suggestive, unwanted messages via various types of social media.
However, sexual harassment can also occur in situations where a senior manager or leader is abusing their power and authority and employees believe that their career development in the business may be compromised if they resist such advances. In its most extreme, this can border on sexual assault which is obviously a criminal offence and can become a Police matter.
In the event that an employee brings a successful claim for sexual harassment, an Employment Tribunal can increase the compensation payable to the employee by up to 25% where it is believed that the employer did not take reasonable steps to prevent such harassment taking place. Employees can also bring a complaint to the Equality and Human Rights Commission (EHRC), who can investigate employers and have the power to enter into legally-binding agreements requiring them to take steps to address issues in the workplace.
Whilst the legislation is not specific and prescriptive, it says that “reasonable steps depends on the specific circumstances of the employer, including its size and sector and other relevant factors. In most cases, the employer’s practices and procedures (eg grievance and reporting procedures) for preventing and dealing with sexual harassment are likely to be relevant”.
However the EHRC have provided some guidance and keys steps are likely to be;
Risk Assessments – employers should consider the risk of sexual harassment occurring in the course of employment and areas of specific risk might include alcohol at work (Christmas parties), social functions, late night working in isolated environments, working in pairs and power imbalances where authority could be abused.
The risk assessment should then consider what steps can be taken to mitigate risk and such risk should also consider third parties – ie sub-contractors, consultants, customers etc .
Risk assessments should be documented and reviewed.
Policy/procedure – employers should also have appropriate policies that deal with sexual harassment, expected behaviours and offers a complaints mechanism.
Training – demonstrating that awareness training has taken place and additional training for managers who may be involved in dealing with complaints of sexual harassment.
Consultation – large employers may want to consider consulting with staff and trade unions if appropriate and may even want to deal with such issues through an anonymous staff survey. This may be less appropriate and practicable in smaller businesses.
Reporting mechanisms – employers should have a clear and effective reporting process so that employees know how to raise a complaint and understand how such complaints will be dealt with. In many cases, such issues are currently managed through a grievance process.
Monitoring – the duty is on-going and it is important to monitor the effectiveness of steps taken by the employer. The guidance states – “if sexual harassment has taken place, the preventative duty means an employer should take action to stop sexual harassment from happening again.”
Workplace champions – employers may wish to consider having workplace champions to provide support and advice to colleagues and this would be someone an employee could speak to if they are experiencing difficulty.
Employee Assistance Programmes – EAPS – some employers may already have EAPs in place where employees can report issues confidentially.
Yes, because the employer owes the employee a “duty of care”.
The new legislation requires employers to ensure that they take action to prevent harassment of employees by a third party which includes a customer, consultant, sub- contractor, supplier, Non Exec Director, professional advisors.
Absolutely – whilst most cases are managed and dealt with internally, if such issues go as far as an Employment Tribunal, the reputational damage through adverse publicity could be significant.
Also, many Companies will have specific accreditation relating to ISO Quality Management and they may find that suppliers want assurances that Companies with whom they do business are complying with the new legislation.
Taking action to prevent sexual harassment is not just a case of drafting some policies and sending a few Managers on a Training course – it is linked to the business culture where there is an expectation of certain professional behaviours and members of Senior Management teams must show leadership and lead from the front by setting a good example.
Adrian Berwick offers HR support to SMEs and GP Surgeries and if you want any advice or guidance on the issues raised in this article, please either contact me on 07885 714771 or adrian@abhrsolutions.co.uk
]]>This could include
The right to disconnect aims to protect employee health, safety and well-being and avoid overwork and burn out through promoting a better work life balance.
An employee is perfectly able to simply not pick up e-mails or phone calls outside their core hours but there is a risk of a backlash from the employer and there is a likelihood that an employee may be subject to disciplinary action. It is also reasonable to assume that an employee who is not willing to work outside core hours may find career progression hampered.
The likelihood is that we will see legislation which will more formally ensure that the right to disconnect or switch off becomes a statutory right as it is in some European countries.
Introducing it is easy but it opens up a can of worms because we live in a 24/7 society, business is international with different time zones and as customers and consumers, we are fundamentally impatient and demand immediate service. Not to mention, the current trend towards more flexible working arrangements where employees want far greater flexibility to do their hours and if you throw the right to disconnect into the mix, you have the recipe for some very challenging discussions between employer and employee.
Employers will also have serious concerns about the impact of such proposed legislation because when emergency issues arise which require immediate action, it is necessary to respond immediately and employee goodwill comes to the fore.
In most cases, employees should have clarity in their terms and conditions about what their weekly contracted hours are and how those hours should be worked.
However, in many contracts there will be a clause that says that the employee is “required to do those hours that are necessary for the satisfactory performance of the job.” That could mean that you are required to stay on at work for 10 minutes to get the job finished or it may mean that you have to come in at weekends to do the work. From an employee perspective, their desire to respond may be determined by whether or not they are going to get paid for additional hours or if working extra hours is just taken as granted – sometimes it’ seen as part of the job – “goes with the territory” – and it’s taken for granted.
An employee is contracted to finish time at 4.00pm and a meeting is put in the diary at 4.00pm and the employee refuses to attend the meeting. In that situation, what could the employer do? They could take disciplinary action against the employee on the basis that they refused to obey a reasonable management instruction. But much will depend on the interpretation of the word “reasonable”.
The list could go on and it is easy to see this from both sides of the table.
Where an employee is issued with a lap top and/or Company mobile device, the employer could reasonably expect that the employee will check their e-mails and pick up calls out of hours but again, they don’t have to.
If an employee receives an e-mail at 9pm and the next morning the employer says why didn’t you deal with the e-mail, their defence could be that it was outside core hours or they could argue that they didn’t log on, had a problem with their broadband at home etc.
But then the employer might say that they could have seen the e-mail on their phone. Employee might say their phone was on silent, out for the evening, no reception etc.
These are all very plausible defences and you can think of so many more.
However, you could argue that the more senior the person, the greater the requirement to be flexible and also, a lack of flexibility could hamper career progression but some would argue that career development shouldn’t be conditional on working extra hours.
In many sectors there will be stand by and call out arrangements where employees are compensated for the fact they must be available to deal with issues out of hours. And, to be fair, many employees willingly do call outs and stand by because it is an excellent way to supplement their basic pay. However, often as you climb the organisation ladder, you have to transition from being paid for every hour worked to a salary that is deemed to be inclusive of all hours worked.
Some Engineers even programme faults for the middle of the night so they get the call out and can book the hours.
Quite simply because we have a mental health crisis and employers owe a duty of care to employees and championing a good work life balance is important.
We have mobiles and lap tops and we can’t control the time an e-mail comes in or when someone calls you but you also hear stories of people who get that sinking feeling when they look at their phone on a Sunday evening and see the e-mails they need to deal with in the morning. Others love the buzz but we are all wired differently.
Creating a statutory right to disconnect (switch off) is easy but it can’t be looked at in isolation and when you factor in issues such as work life balance, mental health, increased rights to work flexibly, it becomes another nightmare for employers, especially SMEs.
Adrian Berwick offers HR support to SMEs and GP Surgeries and if you want any advice or guidance on the issues raised in this article, please either contact me on 07885 714771 or adrian@abhrsolutions.co.uk
]]>Let’s look at some of the significant issues.
Spoiler alert – this is significant. Currently, an employee must have been employed continuously for two years to pursue an ordinary unfair dismissal claim against their employer. They can clearly pursue discrimination claims on the basis of protected characteristics with less than 2 years but the new proposals would make protection from unfair dismissal a day one right for all employees. In simple terms, this means that an employee dismissed after 2 or 3 days could bring an unfair dismissal claim and it also makes probation periods somewhat worthless although it is understood that there will be a process to enable employers to operate probation periods to assess new hires. This will lead to a significant increase in employment tribunal claims, where the system is already unable to deal with the hefty backlog of cases.
Whilst the onus will be on employers to invest more time in the recruitment process to prevent poor hires, it effectively means that an employee with a few weeks service will have nothing to lose by bringing a claim of unfair dismissal. Even if the dismissal is subsequently found to be fair, the employer will have probably incurred considerable costs defending the claim. This may lead to employers being more inclined to settle out of court through settlement agreements or an ACAS COT3.
Also, there is currently a cap on the compensation that an employee can receive for ordinary unfair dismissal but this cap will be removed.
Zero hours contracts are widely used giving flexibility to employers to react to peaks in demand but some unscrupulous employers abuse them and the Labour party will look to ban these contracts which they see as “exploitive”.
Initially, this was seen as an outright ban but there has since been a softening in their position and if employees wish to stay on zero hours contracts, they will have the option to do so. The devil will be in the detail about how that would work but the Labour party and the Unions are opposed to the imposition of these contracts because they don’t guarantee the employee any hours, however, there are many employees who like the flexibility afforded by zero hours contracts.
What is unclear is what will happen to employees currently on a zero hours contract but what we know is that this will have a significant impact on employers to use these contracts as a means of taking on employees unless hours are guaranteed.
The obvious impact will be that a Labour government would determine the levels for national minimum wage and by giving additional powers to the Low Pay Unit, this will mean that statutory levels of minimum pay will be more aligned to the cost of living. Also, the removal of age bands in national minimum wage rates will have an immediate cost impact on payroll if Companies have high levels of employees under the age of 20.
Very few SMEs have formal union recognition agreements, however, there is a statutory right for employees to have the opportunity to be accompanied to disciplinary, redundancy and grievance meetings if they are a union member.
Such rights may be extended but they would propose a range of measures to make it easier for Unions to be recognised and to promote their organisational arrangements in the workplace. Union membership has been declining and they will want to reverse this decline but, to be clear, an employer cannot stop an employee from belonging to a Union and these provisions should not have a massive impact on a small business that already has good employee relations.
Fire and re-hire is an American expression but it is effectively a lawful process that employers can use to change terms and conditions of employment. Employers use it to change terms and conditions – or specifically – to make them less generous and under this process, the employer effectively gives the employee notice where they are “fired” and they then return on less favourable terms – ie they are “re-hired” with continuous service.
Although the “fire and re-hire” expression is relatively new, the concept of issuing notice of termination to an employee and re-employing on less favourable terms is not new and has been around for years but there is a widely held view that the “fire and re-hire” model is being abused and it will be outlawed.
These proposals will change employment law as we currently know it and will ultimately lead to enhanced employee rights in the workplace and greater costs for SMEs especially if they don’t have access to HR support to navigate them through these new regulations.
Whilst the plan to implement these changes within 100 days is ambitious, the Unions will be pushing hard to get these changes through as quickly as possible. As ever, the devil will be in the detail.
Adrian Berwick offers HR support to SMEs and GP Surgeries and if you want any advice or guidance on the issues raised in this article, please either contact me on 07885 714771 or adrian@abhrsolutions.co.uk
]]>The employer gives contractual notice of termination of their existing contract terms and then re-hires them on less favourable terms and conditions with the employee maintaining continuity of employment.
Yes and when an employer is going to carry out a “fire and re-hire” it is recommended that they adhere to an ACAS “fire and re-hire” code of practice. Whilst an ACAS code of practice is not statutory, it is seen as good practice and should the “fire and re-hire” ever be subject to legal proceedings, a Tribunal would factor in if the employer followed the ACAS code.
Is it a recent development?
The principle of terminating an employee’s contract after giving contractual notice and then re-employing them on new and less favourable terms and conditions is not new but the expression “fire and re-hire” has become widely recognised and as it was becoming quite common practice, ACAS introduced their code.
An employer would carry out a “fire and re-hire” where they want to implement new working practices or shift patterns, reduce pay and remuneration arrangements or perhaps reduce sickness benefits or holiday entitlement. Invariably, these changes would be made because the employer wants to save money or the current level of cost is becoming unsustainable and, in some cases threatening the long term viability of the business.
Is it a risky strategy?
It is certainly not without risk and widely condemned by Trade Unions. The greatest risk is that when the period of contractual notice expires and the employee is then re-engaged on less favourable terms that the employee chooses not to accept the new contract and resigns and claims constructive dismissal.
It is widely acknowledged that it is high risk for an employee to bring a constructive dismissal claim and if the employer wants to be in a position to successfully defend their actions, they will need to show that they consulted with the employee(s), followed a fair process, adhering to the ACAS code and acted reasonably.
If the employer intends to change or vary terms and conditions especially in a situation where the newer terms will be less favourable, the employer must consult with the employee(s) and listen to any representation or alternative ways of achieving the same end result and consider how the employee(s) will be impacted by the changes.
“Fire and re-hire” should be seen as a last resort, only used in situations where all other alternatives have been exhausted. After exhausting consultation and discussion, the employer will then choose to issue (or serve) contractual notice to the employee(s) which means that effectively at the expiry of their notice, they cease to be employed under their existing terms and conditions and are re-engaged on the new terms but the employee still retains continuity of service.
If the employee chooses not to transfer to the new terms, their employment has effectively terminated and, if at that point the employee decides not to transfer to the new terms, they are likely to bring a constructive dismissal claim.
The most common examples are where the employer might want to
It is not uncommon for a business to have very generous sick pay terms – perhaps 6 months full pay and 6 months half pay, and due to sickness absence levels, this is a significant cost to the business and they want to make the sick pay terms less generous. Some Companies only ever give Statutory Sick Pay.
Similarly, an employee may be entitled to generous holiday entitlement which might be 30 days plus various service increments plus bank holidays and the employer wants to reduce holiday entitlement.
But, it doesn’t have to be related to holidays or sick pay – it may be related to maternity pay or redundancy terms and again, the employer is only required to meet the statutory obligations.
Most definitely and there have been examples in recent years of big Companies, household names who have adopted this practice and there is no question, it can attract some every adverse publicity and lead to reputational damage even hitting share price.
In addition to the inevitable reputational damage, it can also have a negative impact on morale and employee relations because it can result in mistrust.
Also, depending on the nature of the business, if your benefits package is merely based on statutory provision, this is likely to have a detrimental impact on your ability to retain and attract talent.
Adrian Berwick offers HR support to SMEs and GP Surgeries and if you want any advice or guidance on the issues raised in this article, please either contact me on 07885 714771 or adrian@abhrsolutions.co.uk
]]>However, depending on their job role, you may have to consider whether there are any aspects of the employee’s job which could be putting the expectant mother and unborn child at risk. This isn’t scare-mongering and it could be argued that the risk is far greater where the employee is doing a job that may be manual/physical and could involve;
The list goes on and in a situation like this, HR overlaps with Health and Safety because the employer owes the employee a duty of care and invariably, it is appropriate for an employer to carry out a risk assessment – and commonly this is referred to as an expectant mother risk assessment.
These can take various forms and there is no right or wrong way of doing this but ideally, the employer and employee will work together in completing and documenting the risk assessment, identifying risk and dangers and considering ways and means where the risk can be eliminated and/or mitigated – often referred to as adjustments.
Without wanting to generalise and stereo- type, there are some job roles which are primarily office based and the risks are a lot less than someone working in a physical or manual job but there are still risks in the office associated with lifting and carrying, tripping over trailing cables, reaching, stretching, working with VDUs, climbing stairs etc. Similarly, in retail or hospitality or manufacturing the employee may spend quite long periods of time standing.
There is also the risk associated with mental health – work related stress which might be due to an employee having an unreasonable workload, being required to work long and unsocial hours – or in some cases, an employee may have a job role which involves driving and doing high mileage which can be stressful and tiring.
So, it is good practice to ensure that some form of risk assessment is carried out. Ideally, the employer and employee will do the risk assessment jointly and discuss sensible and reasonable issues and possible adjustments.
In a recent situation, the pregnant employee drove heavy machinery and plant in an environment with uneven terrain, some lone working and with the vehicle jolting and vibrating, it was concluded that the employee would have to be moved to a different role, which in this case was a transport office where the role was primarily administrative.
It is incumbent on the employer to make reasonable adjustments to minimise risk and ensure that there is no risk to the expectant mother and unborn child.
Expectant mother risk assessments vary depending on the role and can be quite simple and straight forward but for some jobs, they will be more detailed. This list is not exhaustive but it may also be necessary to consider
If a risk assessment is carried out at an early stage of the pregnancy, it is advisable to ensure the risk assessment is reviewed because there could be changes in the employee’s situation as she goes further through the pregnancy and any new risks should be identified and appropriate actions taken.
It is not uncommon for an employer to advise the employee that they are going to do an expectant mother risk assessment and the employee will take quite a relaxed view
But, there is no room for complacency and whilst there are risks to the expectant mother, there is considerable risk to the employer if something happens or there is an accident or, worst case scenario, the employee loses the baby.
However much an expectant mother risk assessment may seem like an unnecessary bit of paperwork, it is very important, gives peace of mind to both employer and employee and the employer is going some way to meeting their “duty of care” obligations.
Adrian Berwick offers HR support to SMEs and GP Surgeries and if you want any advice or guidance on the issues raised in this article, please either contact me on 07885 714771 or adrian@abhrsolutions.co.uk
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