employment law

Employment Law: Terms and Conditions of Employment

Employment law can feel like a minefield, especially when you have no internal HR experts. Paul Reader, Dispute Resolution and Commercial legal expert, talks through some key areas.

Do my employees have to be provided with Terms and Conditions of Employment?

Employees have a statutory right, after starting employment, to be provided with a written Statement of Particulars of the most important terms of their employment

Regardless of the statutory right it is important that a statement is provided as it ensures that both employer and employee have clarity on the terms and know how their relationship will be governed.

If an employer fails to provide a statement of terms, the employee can apply to a tribunal to determine what the terms and conditions are. This can mean that employers have terms imposed upon them that they would not have otherwise agreed.

The statement must be provided within two months of commencement of employment. If, during that two-month period, the employee is to begin work outside the UK (for a period of more than one month) the statement must be given to them no later than the time they leave the UK to begin work.

The Statement Must Contain:

  • the names of both employer and employee,
  • the date that continuous employment began,
  • the hours of work,
  • the rate of pay and the time that payment will be made,
  • details of holiday entitlement,
  • the place of work,
  • a job title,
  • the notice that the employer is obliged to give and is entitled to receive to terminate the employment and
  • details of any collective agreement that directly affects the terms of employment.

Where relevant, the statement must also contain:

  • terms relating to the hours of work,
  • sickness and absences,
  • any terms relating to pension and pension schemes,
  • reference to any grievance procedure applicable to the employee,
  • reference to any disciplinary rules and procedure applicable to the employee.

Additionally, if the employment is not intended to be permanent, the statement should give the period for which it is expected to continue, or, if it is for a fixed term, the date it is to end.

Where the Employee is required to work outside the UK for a period of more than one month, the statement should specify:

  • the period for which they are to work outside the UK,
  • the currency in which remuneration is to be paid while they are working outside the UK,
  • any additional remuneration payable to the employee, and any benefits to be provided by reason of being required to work outside the UK, and
  • any terms and conditions relating to the employee’s return to the UK.

Who is entitled to the terms and conditions?

All employees who have worked for one month or more. On 6 April 2020, the right to a written statement of employment particulars will be extended to all categories of ‘worker’, not just ’employees’.

Assistance

In order to assist employer’s navigate the pitfalls involved in preparing a Statement of Particulars, we have created the EmployRight scheme. The scheme provides an employer with:

  • The statutory statement of terms of employment for all their employees,
  • A disciplinary procedure,
  • A grievance procedure, and
  • An equal opportunities policy.

All of which will be reviewed on an annual basis

In addition, the scheme provides an advice line enabling an employer to talk with a qualified lawyer at Berry & Lamberts about any problem that they have in the employment law field for up to 12 hours in any 12-month period.

EmployRight enables employers to feel secure in the knowledge that they have the necessary documents and specialist advice at hand at a cost which is fixed.

 

If you need support or advice about any employment legal issues you may have you can contact Paul Reader or the wider Commercial and Dispute Resolution Team  on 01892 526 344.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.   Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

 

performance management

Managing an employee’s performance

All employers want to support their employees to achieve their best performance. A performance management procedure should aim to ensure that employees contribute in the best way possible. Any procedure should be used in conjunction with a suitable benefit/reward programme and appraisal system.

Identifying the correct procedure

In circumstances where an employee is not performing to the expected level or standard, the employer should first consider whether the reason for the underperformance is that the employee ‘can’t do’, or ‘won’t do’, the work. If it is a case of ‘can’t do’, then the underlying reason will be poor performance or capability, and the employer’s performance procedure should be followed, this may include offering the appropriate training.

If it is a case of ‘won’t do’, and the work is part of their job description, then the underlying reason will be misconduct. In these circumstances the employer’s disciplinary procedure should be followed.

Bear in mind a situation that might, at first glance, appear to be a clear case of poor performance might turn out to be one of misconduct.

The Procedure

First and foremost, gather the evidence. What is the reason for the poor performance? Are there poor resources, market issues, health, lack of expertise/training? Once you have gathered the information you may hold an Informal meeting with the employee. The employee has no right to be accompanied to an informal meeting, although this can be offered if you feel it necessary.

“Can’t do” Procedure

If, after this meeting, it appears that the reason for the poor performance is due to the fact that the employee “can’t do” the job then you should set out the steps that are to be taken by both the employer and the employee to enable the employee to do the job. You need to list the steps to be taken, the date by which improvement is expected and the date of review.

If, after taking the necessary steps to enable the employee to do their work, there is still poor performance a decision will need to be taken as to whether the employee is able to do the work that they are employed to do. If they cannot, you may then look to dismiss the employee due to capability reasons. If you do get to this stage then a formal meeting will need to be arranged, to which the employee will be entitled to be accompanied. If a decision is made to dismiss, this will need to be confirmed in writing and the employee informed of their right to appeal.

“Won’t do” procedure

If, after gathering the evidence, you believe there is misconduct you must arrange a formal meeting – this will be held under the Disciplinary Policy. The employee has the right to be accompanied. If, after the formal meeting, you find that there is misconduct, you must confirm in writing the steps to be taken, issue a warning and inform the employee of their right to appeal.

After gathering the evidence, you may believe there is gross misconduct or the employees conduct does not improve after being given a warning then you should hold a meeting and inform the employee that dismissal maybe the next stage. Again, the employee has the right to be accompanied to this meeting. If you decide to dismiss, you must confirm in writing the reasons for dismissal and inform the employee of their right of appeal.

Assistance

In order to assist employers to deal with these issues we have created the EmployRight scheme. The scheme provides an employer with:

  • The statutory statement of terms of employment for all their employees,
  • A disciplinary procedure,
  • A grievance procedure, and
  • An equal opportunities policy.

All of which will be reviewed on an annual basis

In addition, the scheme provides an advice line enabling an Employer to talk with a qualified lawyer at Berry & Lamberts about any problem that they have in the employment field for up to 12 hours in any 12-month period.

EmployRight enables employers to feel secure in the knowledge that they have the necessary documents and specialist advice at hand at a cost which is fixed.

If you need support or advice about any employment legal issues you may have you can contact Paul Reader or the wider Commercial and Dispute Resolution Team  on 01892 526 344.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.   Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

 

 

Long Term Sickness

Dealing with an employee who is off sick for a number of long periods, or for one continuous long period, is complex. It requires a particularly careful procedure, which must be well documented by the employer.

Particular care will be required to ensure you do not encounter disability discrimination claims if the employee has a long-term condition meeting the definition of disability under the Equality Act 2010.

The existence of a permanent health insurance (PHI) scheme or a pension scheme providing for ill-health retirement, will also need to be considered.

When an employee has been signed off sick an employer should:

 

  1. Consult with the employee in order to obtain a diagnosis and a prognosis to ascertain how long the absence is likely to last,

 

  1. Obtain medical evidence, if required, to clarify the employee’s condition and likely return to work,

 

A medical report can be obtained from either the employees GP or an employer’s own company medical expert. The employee will have to give consent under GDPR and AMRA regulations and a procedure will have to be followed to obtain such consent. The employee will be entitled to consider the report,

 

  1. Obtain an occupational health assessment to see what adjustments could be made to facilitate the employees return to work,

 

  1. Consider disability issues, if the employee is disabled for the purposes of the Equality Act then the employer has a duty to make reasonable adjustments to facilitate the employees return to work. This does not mean making all the adjustments recommended by the employee, the occupational health report or the doctors, just those which are reasonable with reference to the resources of the employer and the likely effect the adjustment will make,

 

  1. Consider any available alternative employment,

 

  1. Consider early retirement under a pension scheme (if there is one),

 

  1. Consider the permanent health insurance (PHI) scheme (if there is one) – an employer cannot dismiss the employee this means they lose their entitlement to benefit under a PHI scheme unless there is a good reason to do so for example a genuine redundancy situation or a finding of misconduct on the part of the employee,

 

  1. Consider dismissing the employee if they are incapable of performing the job and reasonable adjustments would not change this fact and there are no alternative positions available. Ultimately employers are entitled to some finality.

 

Assistance

 

In order to assist employers in managing these issues we have created the EmployRight scheme. The scheme provides an employer with:

 

  • The statutory Statement of Terms of Employment for all their employees,
  • A disciplinary procedure,
  • A grievance procedure, and
  • An equal opportunities policy

 

All of which will be reviewed on an annual basis

 

In addition, the scheme provides an advice line enabling an employer to talk with a qualified lawyer at Berry & Lamberts about any problem that they have in the employment field for up to 12 hours in any 12-month period

 

EmployRight enables employers to feel secure in the knowledge that they have the necessary documents and specialist advice at hand at a cost which is fixed.

 

If you need support or advice about any employment legal issues you may have you can contact Paul Reader or the wider Commercial and Dispute Resolution Team  on 01892 526 344.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.   Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

 

seminar, events, employment law

Common employment law mistakes – free event

The final of our breakfast events for business owners and managers is this coming Tuesday  12th February 2019.

This event, at the Trinity Theatre, Tunbridge Wells, will help you grow your business on strong foundations.

No matter your experience  there are still a number of common employment law mistakes made. Here we will discuss;

  • Importance of Terms and Conditions of Employment
  • Procedure for Performance and Capability Management
  • Long Term Sickness

Running order:

08.30: Join us for coffee, pastries and networking.

09.00: A short presentation by Paul Reader, Managing Partner and Head of Commercial and Dispute Resolution, Berry & Lamberts Solicitors, followed by Q&A.

10.00: Close

Please follow the link  to find out more and to sign up: Common employment law mistakes

If you are unable to attend the event but would like to know more, do not hesitate to get in touch and we will ensure you speak to the correct member of the team – marketing@berryandlamberts.co.uk.   

Please note you will need to sign up as soon as possible as numbers are limited to enable effective Q&A.

self employed

Gig economy – Self employed or employed?

The number of companies being held to account by their employees/contract workers regarding employment status, is growing. First, Uber were challenged and their workers gained new employment rights and assurances.

In November, a tribunal upheld the ruling in an earlier case brought by three drivers that claimed they were entitled to a minimum wage from the time they ‘logged on’ as ready to accept paying fares, to the time they logged off. The ruling is another nail in the gig economy coffin, where workers are contracted on a ‘self-employed’ basis, which excludes them from claiming basic employment rights such as a minimum wage, holiday and sick pay, and union representation.

Restructuring businesses and employer responsibilities

Addison Lee is examining the ruling very carefully, as it could have a massive effect on their fleet of nearly 4,000 drivers and delivery couriers. The company points to the high level of driver satisfaction reported in a survey they took, but this has little or no bearing on the legal situation they now potentially find themselves in, which is why they may have to completely restructure their business from a very fluid gig-economy model to a system that treats all staff as ‘employees’ and not contractors.

This could have a big knock-on effect on taxation too, with Addison Lee potentially responsible for tax, National Insurance and pension contributions for all of its drivers. Put simply, this ruling could cost the company millions.

It comes after a flurry of cases against companies throughout 2017 and 2018 that have challenged the idea of the gig economy, and in the majority of cases, the law has found in favour of workers, not the company. The exception is the Deliveroo case in 2017, where the courts found that takeaway delivery drivers were legitimately self-employed. This result has recently gone through a judicial review, and the findings came out in favour of Deliveroo, which complicate things even further.

How many people does this affect?

It’s estimated that over a million UK workers are employed in the gig economy, with little or no workers rights due to their ‘self-employed contractor’ status. Now, while this situation may suit some people who prefer to have a more flexible working schedule, there are many who would like the same degree of protection that fully employed workers enjoy, particularly over the holy trinity of minimum wage, holiday and sick pay.

Currently, self-employed contractors cannot demand that their employer pays them the national minimum wage, and most delivery or courier drivers work on a job-by-job basis with varying rates worked out at a per-mile rate, rather than a per-hour amount.

Despite the catchy media term of ‘the gig economy’, this situation is nothing new. In the 1980s and 1990s thousands of couriers buzzed around London’s streets, delivering packages paid for at set rates per mile, mini-cab drivers took fares at per-mile or per-minute charges, and hundreds of thousands of ‘temps’ worked from one week to the next via agencies. The gig economy has been around for a lot longer than you’d think, albeit in various different guises. Today, though, the rights of workers are much higher on the agenda, not just because workers are tired of the uncertainty of having a ‘gig’ rather than a proper ‘job’, but because of improvements in human rights and employment legislation.

A new way of working

In short, large companies that have relied on zero-hour contracts, ‘self-employed contractors’ and other more flexible working arrangements will have to take on board that, in every case so far brought (with the exception of Deliveroo), the law has found in favour of the workers. Perhaps, then, it’s time that these companies rethought their policies and brought them into the 21st century, ensuring that everyone, from a zero-hour contract shelf-stacker, ‘self-employed delivery driver to the CEO, has the rights and the working conditions that they deserve.

To discuss any employment matter you can contact Karron Foot or the wider Commercial and Dispute Resolution Team  on 01892 526 344.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.   Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

Employment law, moving office

Making your Move

Whether you’re expanding, relocating or looking to upgrade your premises, it’s important to consider the implications on your employees of any office move. Paul Reader, Managing Partner of Berry and Lamberts shares some legal advice.

Relocation should not be taken lightly. Get it right and you’ll retain key staff and stay on the right side of employment law. Get it wrong and it could lead to a fractured team and significant  costs.

If your business is taken over and the new owners want to move, employees’ rights are protected by regulations known as TUPE – Transfer of Undertakings Protection of Employment.

However, in this article we’ll focus on what happens if you’re retaining ownership and want to relocate.

The power of persuasion

The biggest challenge is often persuading your employees to move. This can be done by offering appropriate support and considering an attractive relocation package, which might include paying relocation costs or helping to arrange a mortgage. It’s essential you pay particular attention to consulting and communicating with staff and their representatives before making any decisions.

Additional responsibilities for 20+ employers

If  more  than 20 employees  are  affected, your company will need to elect staff representatives as part of a collective consultation. Plus, if more than 20 employees are affected in any 90-day period, you must undertake a detailed consultation process and procedure and inform the Secretary of State.

Is your request ‘reasonable’?

When you move, employees with a mobility clause in their contract are obliged to move too, unless they can prove the request is unreasonable. For example, it may have a significant financial impact or could cause severe disruption to family life (such as a move abroad at short notice). However, what is ‘reasonable’ is not clearly defined and can be open to interpretation.

It’s often down to the individual to argue what is or is not an ‘unreasonable’ requirement – and this can lead to a workplace dispute. In these instances, you have four options:

  • Mediation as part of the consultation process
  • Compensation – this may or may not be specified in their existing contract
  • Formal dispute resolution through a solicitor
  • If your employee decides not to move (and there is no contractual requirement for them to do so) they will be redundant. Their job at the current location will no longer exist and there will be no suitable alternative. In these circumstances, the employee will be entitled to a redundancy payment if they have worked for you for two years and they haven’t ‘unreasonably’ refused an offer of suitable alternative work. As redundancy is a form of dismissal, the employee may consider an unfair dismissal claim if they feel badly treated.  It’s therefore sensible to consider requiring the employee to enter into a settlement agreement.

Regardless of the reasons for moving your employees, it’s important you seek advice from the outset to ensure the details are correctly managed. It is much more economical to avoid costly mistakes by getting legal advice at an early stage.

Here are some key issues you should consider:

  • Provide your employees with plenty of notice before you intend to move to allow enough time for consultation
  • Articulate clear reasons for the relocation
  • Consider the upheaval involved. A move to the next town has very different implications to one to a new county or country
  • Look into transport links for employee commutes and how this affects the amenities and facilities they can access – and how this differs from the current location
  • Consider the number of employees affected who have care responsibilities – for example, looking after children under the age of 16 or elderly/vulnerable adults
  • Review potential timescales: are they reasonable relative to the distance being moved?
  • Consider offering a relocation package to employees or giving them a trial period at the new location
  • Ask yourself: is anyone being unintentionally discriminated against? The relocation must not adversely affect an individual or particular group of employees or any disabled worker(s).