October 2017 | Employment Law Services (ELS) LTD

Making staff redundant – get it right or risk facing costly Employment Tribunal claims

Posted on 31 October 20179 June 2023 by @deliver_els

Recent headlines which saw Sainsburys announce they would be cutting 2,000 jobs, BAE Systems almost the same and Vauxhall 400, has highlighted the importance of businesses having the correct HR and legal resources to ensure organisations are following a fair and proper process.

Smaller companies rarely have inhouse resources to assist with similar problems, thus, making small scale redundancies comes with financial danger.

Employers should confirm in the first instance that it is a redundancy situation

Redundancies occur in three main scenarios:

(1) The business is having to shut down

(2) The location of work is closing

(3) The need for a specific role dries up

It is important that employers select individuals in a fair manner, for example because an employee’s level of experience or capability to do their job. Employers must not select employees on the grounds of age, gender, disability and pregnancy. Failing to comply with these rules will result in an unfair dismissal.

In addition, before an employer decides to make an individual redundant, they should consider other alternatives to the problem. For example, stop recruiting new staff, cut over time and place employees on lay off.

Redundancy Consultations

Should you fail to consult employees in a redundancy, any redundancy made will almost certainly be classed as unfair, exposing employers to an Employment Tribunal claim.

Consultations should include:

– An explanation of the redundancy

– A discussion of any alternative

– Advice on alternative employment

– Listening to any proposals from those affected

– Asking if any employees would like to volunteer for redundancy

Selection Criteria

In this event, employers should consult those affected regarding the selection criteria. Examples of such criteria include:

– Attendance record

– Disciplinary record

– Skills and experience

– Standard of work

– Aptitude for work

Following this, employers should apply this criteria to the roles at risk via a scoring system. This should be applied objectively and personal opinions should not be taken into consideration. On calculating the final scores, employers will establish those employees who score lowest.

Provide those affected with notice

The employees who have been selected for redundancy should be given proper notice of the dismissal. Notice periods are usually the same as those you would give when terminating a contract of employment. Further, employers may establish they have other work available within the business. In this instance, a suitable role should be offered within the notice period before the end of employment and as early as possible.

It is important to note employees with 2 years continuous service at the business are entitled to a statutory redundancy payment up to a maximum of £14,670.

Comprehensive Employment Law Support for Business

Employment Law Services (ELS) is a leading provider of employment law and HR guidance and support to SMEs and Medium Sized Businesses in Scotland and England & Wales. We are proud of our strong reputation for delivering an effective service to employers across a range of sectors including Food and Drink, Telecoms and Distribution.

A number of our team members are recognised as experts in their field, qualified to provide bespoke assistance to clients that reflect the commercial realities they face. Of all areas of UK law, employment law is arguably one of the most complex and fast changing. This requires employers to consult advisors who are up to date with developments and able to keep them appropriately advised on the changing nature of their obligations.

Our service places priority on providing assistance to employers that is prompt and effective. The team at Employment Law Services (ELS) take their role very seriously, and work in partnership with employers to discharge their responsibilities to employees when pursuing a redundancy scheme. We will also be happy to provide onsite guidance and support to businesses, ensuring that they are appropriately advised on the day-to-day realities of operating a redundancy scheme. Contact our team today and find out how we can help you.

Please note, the information in this article is for guidance purposes only and it is therefore advised that employers seek legal advice before embarking on any enforcement action.

Employment Tribunal Refund Scheme Launched

Posted on 23 October 20178 June 2023 by @deliver_els

Following the decision made by the Supreme Court in July, ruling Employment Tribunal fees as unlawful, the Government have announced details on how employees who paid tribunal fees can go about requesting a refund.

The Government have submitted that the scheme will be completed in phases. The first phase of the scheme is expected to last around 4 weeks with roughly 1,000 individuals being contacted with details on how to apply for a refund.

In addition, successful candidates will recover 0.5% interest as well as their fee refund. The interest will be calculated from the date they paid the fee up until the date the fee was refunded.

The Government also stated that it would be “working with Trade Unions who have supported large multiple claims, potentially involving hundreds of claimants.”

Those who have paid tribunal fees, but have not yet been called on to take part in the initial stage of the scheme, can register their interest in applying for a refund when the full scheme is launched.

How can we help?

If you’re facing an Employment Tribunal Claim and want to find out more about how Employment Law Services (ELS) can help support your company, contact us today on 0800 612 4772 or request a Free Quote now.

Government publishes Parental Leave Bill

Posted on 18 October 20178 June 2023 by @deliver_els

On the 13^th October, the UK Government published a bill offering parents 2 weeks paid leave should they suffer the loss of a child.

The Parental Bereavement (Pay and Leave) Bill was introduced by Kevin Hollinrake, MP and offers a day-one right to bereavement leave for any employed parent who loses a child under the age of 18.

In order to be eligible for statutory bereavement pay the bill states that employees will be required to have served a minimum of 26 weeks continuous service with their employer.

The bill is set to receive a second reading in Parliament this week, with the aim of it becoming law in 2020.

“We want parents to feel properly supported by their employer when they go through this deeply distressing ordeal of losing a child. That’s why the Government is backing this bill which goes significantly further than most countries in providing this kind of workplace right for employees” said Margot James, Business Minister.

Kevin Hollinrake added further: “Sadly I have had constitutes who have gone through this dreadful experience and while some parents prefer to carry on working, others need time off. This new law will give employed parents a legal right to two weeks paid leave, giving them that all important time and space away from work to grieve at such a desperately sad time.”

The head of Public Policy of the CIPD, Ben Willmott, said: “Our research shows many employers already offer their staff paid bereavement leave. This new law will build on this, so all bereaved parents of children under the age of 18 will have the reassurance of knowing they don’t have to worry while they grieve for loved ones in the immediate aftermath of such a tragedy.”

At present, there is currently no legal requirement for employers to pay employees who take time off to grieve, although a majority of employers do. The Employment Rights Act provides that employees have a day-one right to a “reasonable” amount of unpaid work in the event of an emergency involving a dependent. This includes making arrangements after the death of a dependent.

How can Employment Law Services (ELS) help?

If you require employment law advice on any of the issues raised in this article, or any other employment issue give us a call today on 0370 218 5662. You can also find out more about our fixed fee HR packages here and fixed fee employment law packages here, or get in touch.

Extreme weather conditions: What does this mean for employers?

Posted on 16 October 20178 June 2023 by @deliver_els

The effects of Hurricane Ophelia are likely to cause a headache for employers UK wide, with damaged buildings and closed networks wide ranging. Businesses may find that they need to temporarily close; or in the event that they do stay open, employees may be unable to get to work.

There is no specific legislation that governs the issue of travelling to work when the weather is bad, however, the following advice is available.

(1) Is the employee able to work from home?

In the first instance, employers should be flexible. Is the employee able to work from home until the weather improves – employers should also consider using annual leave or allowing the employee to make up the time.

(2) Consider the personal circumstances of each employee

Employers should consider the area that each employee lives in. Some employees may live in an area that is easily accessible to the workplace and others may live some distance away or in a more rural location. Ultimately, an employer has a duty of care towards the health and safety of his employee, and if threatened with disciplinary sanctions, employees may be unreasonably forced to embark on potentially dangerous journeys to work. Which exposes the employer to risk in this instance.

(3) Employers may have to temporarily close the business

If you have to close the business, unless there is a contractual term to place your employees on unpaid lay off, employees will be entitled to full pay for any working hours they would have worked if the business was opened.

(4) Paying staff who cannot make it into work

The employer does not have to pay the employee if they cannot make it into the workplace. For example, an employee can’t get into work because the trainline has been cancelled or the roads are closed, as the business is open, this absence would be considered as unpaid. This may seem a little extreme, therefore employers may wish to discuss pay further with an employee during this absence.

(5) Employees who have children whose school has been closed due to the weather

It is important employers remember that employees have the right to take time off for dependents when other care arrangements break down. Time off for dependents would usually last around 2 days, anything after this should be discussed with the employee.

How can Employment Law Services (ELS)

Please note, the information in this article is for guidance purposes only and it is therefore advised that employers seek legal advice before embarking on any enforcement action.

Scary Legal Issues that Halloween brings for employers

Posted on 13 October 201712 June 2023 by @deliver_els

Halloween is a celebration observed by a number of countries worldwide on the 31^st October and with it comes allegations of workplace misconduct.

Inappropriate behaviour can arise at any time of the year; however, Halloween appears to bring a special type of poor behaviour.

Discrimination against Pagan Witches

It is important that employers do not take uncommon religious beliefs less seriously than more obvious beliefs.

This was seen in the case of Holland v Angel Supermarket Ltd and Another. In this case a Wiccan employee claimed she was unfairly dismissed after her employers found out she was a Pagan practicing witch. It was reported that her employers asked if “modern day witches still flew on broomsticks.”

The Equality Act 2010 protects individuals of “any religion” and does not specify that the belief has to be of a major religion in order to be protected.

Fancy dress discrimination

In the case of X v Y, the Employment Tribunal established that a gay employee was harassed after attending a work fancy dress party where the employee observed banter of an offensive sexual nature.

Often employers use fancy dress during holiday periods to motivate their staff. However, it is important that businesses are aware that fancy dress in the workplace has the capacity to offend others. E.G. Religious and nationality costumes could result in a discrimination claim.

Further, in the case of Brown v Young and Co.’s Brewery, the Employment Tribunal submitted that a manager harassed a black employee by telling him he “looked like a pimp” as he was wearing a St Patricks Day hat.

Halloween related misconduct

In Biggin Hill Airport v Derwich, an employee had her contract of employment terminated after placing an image of a witch on the screensaver of a colleague who she was in dispute with.

Misconduct through social media

What employees post on social media can have a detrimental effect on your organisation. Liam Williams, an international Welsh rugby player found himself having to publicly apologise after he posted a picture of him painted black online posing as the footballer Wilfried Bony.

It is recommended that employers have a social media policy providing employees with clear provisions on what will be deemed acceptable and unacceptable conduct online.

Health and Safety issues

Should you permit your employees to come in to work in fancy dress. It is important you are aware of the health and safety implications that come with this. E.G. Allowing workers to wear costumes whilst operating machinery can be disastrous.

The law provides that employers will be held liable for the safety of their employees. In Travis v Robbins-Sykes Hardwood Flooring, an employer learnt the hard way after the courts held him responsible for one of his workers injury compensation claims. In this event, the employee fell off a stool after being scared by a colleague who was wearing a mask.

Employer considerations

-Ensure there is clear guidelines and policies on appropriate workplace conduct;

-Confirm with managers their understanding on discrimination and harassment in the workplace;

-Ensure all policies are applied fairly and at all times.

Employment Law Support for Employers

World Mental Health Day 2017 – Mental health in the workplace

Posted on 10 October 201712 June 2023 by @deliver_els

What is mental health?

ACAS define mental health as: “The mental and emotional state in which we feel able to cope with normal stresses of everyday life.”

When an individual feels good about themselves they often work more productively, communicate better with colleagues and make a valuable contribution within the workplace.

It is important to note that mental health can vary from feeling ‘a bit down’ to common illnesses such as anxiety and depression to more severe cases such as bipolar disorder and schizophrenia.

It has been reported that mental health problems cost the average UK employer roughly £30bn annually. This is due to lack of production, recruitment issues and absence.

“Although understanding of mental health issues is growing, misconceptions still remain – especially in the workplace. Once thought of as something that happened to an unfortunate few, one in four people are now affected by mental health issues, and employers need to be able to spot the signs. If not, problems may only come to light later on when more serious interventions are necessary.” Joy Reymond, Head of Vocational Rehabilitation Services, Unum.

Therefore, it is encouraged that employers promote good mental health and provide support for employees who are suffering from mental health issues such as anxiety and depression.

This blog focuses on the practical, but less obvious steps that employers should take in order to make a more positive difference to the lives of their employees who may be suffering from mental health issues in the workplace

Recognise that all employees have mental health

It is important that employers identify that all employees have mental health, in the same way an individual has their physical health. Both can deteriorate from good to bad depending on circumstances that may be going on in and out of the working environment.

Keep in contact with employees who are off with a mental health issue

It is crucial that employers find the right balance when keeping in touch with an employee who is off sick. Further, employers should be aware that the longer an employee is off with a mental health issue, the less likely they are to return to work. This is because they will begin to loose confidence and feel kept in the dark from the business.

In addition, employers should help their employees with access to medical services. By helping the employee take medical action as early as possible will see the employee return to work sooner than later.

Culture

Employers should develop a mental health policy, by doing this employee’s will be reassured that the business cares for their wellbeing. In addition, such policies will create an overall awareness in the workplace and encourage individuals to talk about mental health.

Communication

Employers should use staff newsletters, posters and other internal communications to promote mental health awareness. As well as this, introducing discussions into staff meetings can be used as an opportunity to check in with how employees are feeling.

Ensure all managers are properly trained

By training up managers, employees will be reassured that their management team is educated in mental health matters, meaning they will feel more inclined to come forward and discuss any problems they may be having in and out of the working environment.

Zero tolerance to bullying policies

All employers should ensure there is a zero-tolerance approach taken to bullying in the workplace. It should be communicated in these policies that those found guilty of such conduct will be subject to disciplinary action.

Employment Law Support for Employers

Most of the time absence is genuine. At Employment Law Services (ELS) our employment law team help our clients form effective people management policies, give advice on the cause of absence and provide them with guidance on how to monitor long-term illness, return to work, sick pay and fit notes.

If you require employment law advice on any of the issues raised in this article, or any other employment issue give us a call today on 0370 218 5662.

Please note, this article has not to be taken as legal advice. The author strongly advises the reader to take the correct legal advice before embarking on any enforcement action.

European Human Rights Court limits employers’ right to monitor employee emails

Posted on 6 October 20178 June 2023 by @deliver_els

Last month, Europe’s Human Rights Court established that employers can monitor employees’ emails but only if they notify the employee in advance. This represents the rapid evolving area of legislation at the crossing of technology, privacy and workers’ rights.

The judgement in the case of Barbulescu’s v Romania concluded that the authorities had not sufficiently protected Barbulescu’s right to a private life and correspondence. It was further established that the national courts had failed to identify whether the employee had been given prior notice from his employer that his workplace communications were being observed.

In this case, the employees’ communications involved messages he had sent to his brother and fiancé disclosing private matters, some of which were of an intimate nature.

Following this, the employee had his employment terminated on the grounds that he had breached the company’s internal regulations that prohibited the use of company equipment for personal purposes.

The courts in this case submitted, although it was debatable whether the employee could have had a reasonable expectation of privacy in view of his employer’s restrictive regulations on internet use, and although he had been informed, the employers instruction could not reduce private social life in the workplace to zero.

The decision made in this case does not mean that employers are prevented or restricted when it comes to monitoring emails, but they should be taking into consideration some other important aspects before doing so.

(1) Have a legitimate reason to monitor employees’ emails in the first instance

Legitimate reasons include; The need to detect any criminal activity, to identify if an employee is using workplace systems for the wrong reason, making sure that employees are working to the expected standards and following company procedures, investigating claims of misconduct and finally, if there is a need to identify misuse of confidential information.

Employers must have a fair, proportionate and legitimate reason to investigate employee communications. It is crucial that employers find the correct balance between their needs and their employees right to a private life.

(2) Ensure that there are clear workplace policies in place

In the event that you decide to monitor the use of electronic platforms in the workplace, it is important that all employees are made aware of the nature and the context of the monitoring. Further, it is recommended that employers insert such provisions into the employees’ contract of employment or employee handbooks. Within these the instructions, it should be made clear what the employee can and cannot do and the consequences of any violation within these policies.

(3) Ensure your employees are well informed in advance

Should an employer find that an employee’s communication use needs to be monitored, it is crucial that they employee is made aware that this is going to occur. As well as this, the employee should be notified of how this will be conducted and what aspects of communication are under investigation.

(4) If you do not already, have a monitoring policy in place

If an employer does not already have these in place, or it is not detailed in employee’s phones, emails and internet use, then these should be incorporated and communicated to all employees. Having these signed documents is crucial in the event that an employer should wish to enforce a monitoring policy.

(5) Is there a less intrusive method available?

In the first instance, it may be more productive to ask the employee first if they are using workplace emails for private use, instead of assuming and accessing their email immediately. If the employee owns up and admits they have been using emails for personal use there will be no need to monitor further. Monitoring should only be carried out if the employee denies such a claim.

Employers should note that UK case law states that the monitoring of employee calls, emails and internet use is a breach of privacy. This latest judgement by the European Human Rights Court reiterates the seriousness for UK employers to find the correct balance prior to carrying out any investigations of employees.

Employment Law Support for Employers

Pregnant women, new mothers and redundancy – don’t get caught out!

Posted on 2 October 201712 June 2023 by @deliver_els

If an employer finds that they need to restructure their organisation and make redundancies, then it is extremely important that they are careful about the way they treat pregnant employees or employees on maternity leave.

In the first instance, it is important that employers understand pregnancy and maternity protection.

The purpose of this legislation is to:

Protect the health of mothers and babies
Minimise the problems that working women face due to starting a family

The Maternity and Parental Leave Regulations 1999 provides that from the beginning of pregnancy to the end of maternity leave is a ‘protected period’.

The law states:

During this protected period, it is viewed as unlawful for a woman to be treated unfavourable because of her pregnancy or because she is on maternity leave
A woman returning from maternity leave has the right to return to the same position as before she left; her position cannot be filled even if the employer believes the interim is a better employee
Should an employer select an employee for redundancy on the grounds of pregnancy or maternity leave, this will be viewed as unlawful discrimination and unfair dismissal
Failing to consult an employee on maternity leave about redundancy will be viewed as unlawful discrimination
A female made redundant whilst on maternity leave, must be offered another suitable position. She should not be required to re-apply to the organisation.

How can employers manage redundancy that involves pregnant employees/employees on maternity leave?

If you are reorganising the workforce or downsizing and you need to make employees redundant, which includes a pregnant employee or one that is on maternity leave, employers should:

Ensure the redundancy is genuine and unavoidable
Make sure the employee is consulted
Identify non-discriminatory selection criteria
Look at alternative roles

Is the redundancy genuine?

Employers should ask themselves this question in the first instance, and ensure the redundancy is for a genuine reason and not caused by the pregnancy or maternity leave, genuine reasons include – closure of the business.

Employers often find that whilst the employee is on maternity leave, the business runs fine without her by readjusting and reorganising. However, this will not be viewed as a valid reason to make the employee redundant.

How should employers consult employees on maternity leave?

Employers should raise the issue as early as possible with all employees, alerting them of the proposed redundancies.

When doing this, employers should:

Raise the reason behind the redundancy
Discuss alternatives, such as voluntary redundancy or reducing working hours
Alert employees at risk of the selection criteria

Failing to consult an employee on maternity leave is likely to be viewed as discrimination should the employee take a claim to the Employment Tribunal. If employers are reluctant to contact an employee on maternity leave in case of disturbing them, they should discuss preferred contact options prior to the employee going on maternity leave.

How should employers decide the right selection criteria?

If the employer chooses to use a selection process to decide who to make redundant ACAS states “it must be transparent, known by everyone it applies to and non-discriminatory.” Further, this process should be objective and measurable.

Expected criteria to be considered includes:

Qualifications and the skills of that employee
Performance
Attendance record
Disciplinary record
Customer feedback

It is important that when considering criteria, employers do not disadvantage the employee on the grounds of sex, pregnancy or maternity leave.

Is there a relevant alternative position the employee can be put in?

On occasions, employers may have alternative positions that they can offer a redundant employee. In this event, an employee on maternity leave who is being considered for redundancy must be offered this vacancy before anyone else. If you fail to do this, her dismissal may be viewed as automatically unfair.

If there is no other vacancy to be offered, a woman can be made redundant during maternity leave if the reason behind the redundancy is unconnected with the pregnancy or maternity leave and the employer can display they followed a fair redundancy process.

Employment Law Support for Employers

Please note, the information in this article is for guidance purposes only and it is therefore advised that employers seek legal advice before embarking on any enforcement action.