Employment Law Advices for Employers Archives | Page 6 of 7

An employer’s guide to Christmas bonuses

Posted on 6 December 20177 June 2023 by @deliver_els

One question often asked by employers at this time of year is whether they are obliged to pay its employees a Christmas bonus if they have done so in earlier years.

Are employers legally obliged to pay their staff a Christmas bonus?

Each case is different – In the first instance, employers should check the documentation that forms the employment relationship, i.e., the contract of employment, employee handbook, offer letters etc.

In the event that the employment documentation states that the employee will receive a bonus at Christmas, the employer must do so accordingly. Should the employer fail to provide its employee with a Christmas bonus in this instance, he/she will be in breach of contract. For example, the employee’s contract/handbook states that on Christmas Eve they will receive an additional week’s wage, then the employee can expect to receive this on the 24^th of December each year.

What if the contract is silent?

The employer should then proceed with checking over the employee handbook and company policy. For example, there is a company policy that states employees will receive a Christmas bonus if certain targets are achieved or if the business does especially well that year.

If the handbook/policy do not form the employment relationship, then it is usually at the employer’s discretion whether staff get a bonus at Christmas time or not. Employers should approach Christmas bonuses with caution and review the exact wording to confirm they are discretionary and not contractual.

Can an employer withhold a bonus?

If the provisions of a discretionary bonus scheme are clearly set out an employer can withhold the bonus as long as he is not acting irrational on doing so.

In contrast to this, if a bonus has been agreed to under contract and is not paid, despite the criteria being achieved, an employee may then apply to the Employment Tribunal for unlawful deduction of wages. When setting out the criteria for a bonus, it is important that expectations are not discriminatory.

Get the written documents right

If an employer wishes to ensure they are not legally obliged to pay its staff a Christmas bonus every year then they must make it clear from the start that bonuses will be paid at the employer’s discretion, every situation should be considered on facts. It is therefore recommended that employers seek legal advice before embarking on any action.

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.

An employer’s guide to the party season

Posted on 30 November 201730 November 2023 by @deliver_els

Christmas party season is almost in full swing and with it comes the likelihood of a workplace claim as the result of inappropriate conduct.

At Employment Law Services (ELS), we strongly advise that employers are aware of their legal obligations to their employees.

Inviting your staff

In the first instance, it should not be made a requirement that all staff attend the office party. It is important to keep in mind that Christmas is a Christian holiday, thus, an employee should not be pressurised into attending the event if they do not want to on the grounds of religion. In addition, if the party is out of working hours employers should bear in mind some people will have family obligations that may stop them from attending.

Further, employers should ensure that all employees are invited to the Christmas party, this includes employees off on maternity leave, paternity leave and sick leave. Employers will expose themselves to complaints of discrimination should they fail to invite all employees.

Christmas party policies

Alcohol fuelled behaviour is at the root of several Employment Tribunal claims every year. It is important to note; the Christmas party is still a work-related activity. Employers should therefore inform their employees that excessive alcohol consumption, violence and other forms of unwanted behaviour will not be tolerated. All employees should be made aware of the disciplinary procedures that will result from such behaviour.

Tis the season!

To minimise the risk of employees getting too drunk at office parties, it is recommended that employers limit the amount of free alcohol, provide non-alcoholic alternatives and ensure there is enough food to balance it all out.

Bullying, harassment and discrimination

An employer can still be held liable for its employees if the misconduct happened out of working hours – what one may believe to be banter could be taken completely different from the person on the receiving end.

One case that highlights the severity of this, involved a city solicitor stating in public that his colleague had “great cleavage” and “great baps” – these comments were made at the office Christmas party and ended being settled in the Employment Tribunal for £1m!!!!!!

Making promises

At EmployEasily, our advice is do not discuss salaries, promotions or remuneration with employees whilst under the influence!

This was seen in the case of Judge v Crown Leisure Limited – in which the employee claimed his employer promised him a wage increase during conversation at the office Christmas party. On returning to work his wages remained the same. It was at this point the employee resigned and took his employers to the Employment Tribunal claiming constructive dismissal on the grounds that his employer had broken a contractual promise.

However, in this event the EAT established that the promise was too vague and therefore did not amount to a binding contract. Employers should bear in mind that for a contract to be binding it does not always need to be in writing, and in this case, it could have easily gone in the employee’s favour. Employers should not assume that because it has been said at a social event that it cannot be intended to create legally binding commitments.

Social media

The growing use of social media platforms like Facebook and Instagram add another risk associated with the office party that employers should acknowledge.

Employers should reiterate to all employees the businesses social media policy and the consequences of posting pictures online that may damage the company’s reputation or breach another colleagues right to privacy. Our specialist consultants can offer advice and guidance on social media laws for employers.

The morning after the night before

It is up to each individual employer on how they approach the day after the office party, in regard to employee lateness/not showing up at all.

However, all employees should be aware that absence and lateness will be monitored and disciplinary action may be taken if they fail to turn up to work because of a hangover.

How can Employment Law Services (ELS) help?

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.

Guidance for employers on workplace issues over the winter months

Posted on 14 November 20178 June 2023 by @deliver_els

As an employer, it pays to be fully prepared for whatever weather this winter may throw at you – whether its wind, rain, storms or snow and ice. Winter in the UK often brings its own set of workplace problems.

Severe weather conditions can result in staff absence due to travel disruption and seasonal commemorations often lead to a ‘mad rush’ of employees attempting to book in annual leave all at once.

At Employment Law Services (ELS) our advice is: Don’t get caught in the cold – ensure you have logical workplace polices on staff issues, such as travelling to work and taking holiday requests; communicate them to all employees now!

Adverse weather conditions

What issues should you keep in mind?

– You are not legally obliged to pay staff if they cannot get into work because of weather conditions

– Have a policy stating this – this will ensure employees are aware of the businesses expectations on them getting into work

– Try to be flexible where possible – can you come to a short-term arrangement that the employee can work from home temporarily until the weather/travel improves? Or, can you temporarily modify working hours to reduce disruptions?

Health

With winter weather, comes the cold and flu- this is likely to see an increase in the number of employees calling in sick to work.

– There should be provisions within the workplace absence policy alerting employees of when they will be expected to contact work when calling in sick. In addition, employers should routinely hold back to work interviews when an employee returns from being off sick.

– Should the illness last more than 7 days, employees should fill in a self-certificate detailing their short-term illness or alternatively, they should seek a statement of fitness for work from their GP.

Holiday entitlements

Around the festive period employers may find that they receive a burst of annual leave requests.

– When public holidays during the Christmas and New Year period fall on Saturdays and Sundays, alternative weekdays will be considered as public holidays.

– There is no legal requirement to paid leave for public holidays.

*Most part and full-time workers have the legal entitlement of 5.6 weeks paid holiday. Employers may agree to further annual leave as part of an individual’s contract.

– Employers can set periods around when employees will be expected to use annual leave, such as the business closing for Christmas.

Health in the workplace

Winter months often provoke mental health conditions such as stress and depression. Identifying this is a key business skill.

– It is unusual for an employee to freely open up to employers about a mental health condition. Thus, approaching an employee who you believe may be suffering from a mental health issue can be difficult. In this instance you should try and catch the employee privately and informally and ask how they are doing.

– Ensure your line managers are aware of how to react to signs of stress in the workplace. As an employer you may find that management staff require the correct training to assist them with handling difficult conversations and raise awareness of health issues.

How can Employment Law Services (ELS) help?

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.

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

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

What to do if your employee resigns and doesnt work notice

Posted on 21 September 201712 June 2023 by @deliver_els

What action can you take when an employee resigns but does not work their required notice period?

In the first instance, employees are generally under a contractual duty to give their employer a minimum notice of resignation. This duty is waived if the employer has fundamentally breached the contract of employment or has agreed to remove the notice period.

Of course, if the employee does not show up to work during their notice period the employer does not have to pay them. However, the business may then be at a loss in the event that the employer then has additional costs to pay should he bring in an agency worker to cover the role.

At Employment Law Services (ELS) we believe prevention is key!

Preventing the situation from occurring in the first place is always better than the cure. It is recommended that employers insert contractual rights which will discourage the employee from not working their notice period whilst providing the employer with an effective remedy if they do.

An example of this is a contractual clause that permits the company to deduct from the employee’s final wage. This is usually an amount equal to what the employee would have earned throughout the period of notice they failed to work. E.G. If they did not work one week then the employer could deduct one week’s pay off their final wage.

Breach of contract

It is crucial that employers insert these provisions into the contract of employment prior to the employee handing in their notice.

Should you fail to do this, then deduct from the employee’s final wage anyway, this action will amount to an unlawful deduction of wages. For which the employee can then raise a claim in the Employment Tribunal, this will then further prevent you from recovering any losses occurred using another legal remedy.

It can become time consuming and costly when attempting to prove damages to the business and will essentially depend on the nature of the organisation and the role of the employee. Because of this, employers often fail to pursue further action.

Thus, it is extremely important that your contracts of employment are kept up to date in order to protect yourself and the business from unnecessary damages.

How can Employment Law Services (ELS) help protect your business?

For Employers that already have contracts of employment in place, we can review all existing documents and update them as required and for Employers that have nothing in place, we can produce effective contracts of employment for all staff members from scratch.

Whatever your requirements are, Employment Law Services (ELS) can help! Either as a ‘one-off’ exercise or as part of one of our HR Service packages, EmployEasily will ensure your statutory obligations are met and that your business prevents problems and remains protected.

At Employment Law Services (ELS), our team understand that the needs of employers differ depending on the nature of the role that they are looking to fill. We also appreciate that some employers may already have some form of contract with employees, but may be concerned that the contract does not accurately reflect the nature of the relationship or is riddled with ambiguities. It is these issues which often cause difficulties to employers in attempting to deal with employees when difficulties can and do arise. We take pride in offering a service that aims to address these concerns of employers.

Employment Law Support for Employers

Absence and Attendance Management in the Workplace

Posted on 23 August 20177 June 2023 by @deliver_els

“My employee is absent without my permission and has taken company property. How can I get this back?”

The first step that would be recommended before taking legal action would be to write to the employee requesting that the return the property that belongs to you.

It is important to note that Civil Court proceeding are often costly and can damage a company’s reputation. Thus, the matter should be resolved through conciliatory routes in the first instance.

“I cannot get a hold of my employee who is on long-term sick leave. What can I do?”

It is crucial that employers do not put pressure on the employee to return to work, this can make the situation worse. However, you can still maintain appropriate contact with this employee during their long-term sick leave.

When determining whether this is a conduct issue, employers should check the wording of their contract of employment/workplace policy. If the employee has not followed the provisions set out in these, it may then be classified as an unauthorised absence which will generally result in the employee being unpaid for this time. The employer should then inform the employee that the company will be considering disciplinary action, this should be done in writing.

If you must contact an absent employee, you should follow best practice by ensuring the letter is sent recorded delivery, this will allow you to track it and identify who it was signed by on delivery. If the letter is sent back to you, as the employer you should make reasonable attempts to find out if the employee has changed address and not informed you. It is crucial that you do not assume the employee has resigned due to lack of contact.

“My employee went on holiday and has not returned to work. What action can I take?”

In the first event, employers would be expected to make a reasonable attempt at contacting the employee. This ensures that fair procedure is being followed whilst allowing the employee a chance to explain. Further, it is recommended that employers try contact through all avenues such as next of kin and colleagues.

In addition, employers should set a date in which they expect the employee to contact the workplace by – this should be put in writing.

Following a reasonable investigation and there is still no explanation for their absence, the employer may then inform the employee that dismissal for gross-misconduct will be considered. It is important that employers seek legal advice in this situation to ensure risks of claims to the Employment Tribunal are eliminated.

Can I withdraw an offer if the candidate has not responded?

If your offer has not been accepted, you can formally retract it at any point in writing. This is because there is no contract formed at this point. Employers should follow best practice in this event, your offer letter should inform the candidate that the offer is due to lapse if it has not been accepted by a specific date.

Employment Law Support for Employers

Data Protection Bill set to launch in September

Posted on 9 August 20177 June 2023 by @deliver_els

On the 7^th of August, the Government outlined its objective for the new Data Protection Bill, it is due to be published next month and will merge the EU’s General Data Protection Regulation (GDPR) into legislation in the UK.

This legislation will now grant individuals the right to be forgotten and ask for any personal data held by others to be erased.

Organisations will have support through this process to make sure they are complying and managing data in line with regulations.

Should an organisation fail to meet requirements, the Information Commissioner will now have additional powers to defend consumer rights, meaning they can now issue fines of up to 17m or 4% of global turnover (whatever figure is higher) in the event that Data Protection Regulations are breached.

Minister of the Department for Digital, Culture, Media and Sport, Matt Hancock stated:

“Our measures are designed to support businesses in their use of data, and give consumers the confidence that their data is protected and those who misuse it will be held to account.

“The new Data Protection Bill will give us one of the most robust, yet dynamic, set of data laws in the world. The Bill will give people more control over their data, require more consent for its use, and prepare Britain for Brexit. We have some of the best data science in the world and this new law will help it to thrive.”

“The Data Protection Bill will allow the UK to continue to set the gold standard on data protection. We already have the largest internet economy in the G20. This Bill will help maintain that position by giving consumers confidence that Britain’s data rules are fit for the digital age in which we live.”

The Department for Digital, Culture, Media and Sport said further that the Bill would:

– Make it simpler to withdraw consent for the use of personal data;

– Allow people to ask for their personal data held by companies to be erased;

– Enable parents and guardians to give consent for their child’s data to be used;

– Require ‘explicit’ consent to be necessary for processing sensitive personal data;

– Expand the definition of ‘personal data’ to include IP addresses, internet cookies and DNA;

– Strengthen the law to reflect the changing nature and scope of the digital economy;

– Make it easier and free for individuals to require an organisation to disclose the personal data it holds on them;

– Make it easier for customers to move data between service providers.

The Government have said it will be a criminal offence if an individual “intentionally or recklessly re-identifies an individual from anonymised or pseudonymised data.”

In addition, those in association with this who handle or process the data knowingly, will also be committing a criminal offence.

A further offence will be conceived should an individual alter records with the intent of stopping them being identified when someone exercises their right to the data.

How can employers prepare for the reforms?

– Start to consider how to efficiently recruit and train a Data Protection Officer;

– Have in place a clear data policy that defines procedures, in particular data breaches;

– Review employment contracts that regard consent;

– Have in place clear privacy notices that are straightforward so that it is easily translated to your employees;

– Ensure there is a legitimate basis for the retention of data stored and for the transfer of any data. E.G. in relation to HR.

How can we help?

At Employment Law Services (ELS), we will work together with our clients to ensure they are fully protected and prepared for the new regulation to take effect in May 2018. If you have any specific queries about the impact this may have on your business or wish to contact us for a free consultation call us today on – 0800 612 4772.

“I lost a darts tournament last night and I am too traumatised to come in to work today”

Posted on 17 July 20179 June 2023 by @deliver_els

“I lost a darts tournament last night and I am too traumatised to come in to work today” – One of the most bizarre excuses for calling in sick to work found by survey published by CV-Library.

A recent survey published by jobs website CV-Library has identified that over the last year, around 80% of workers in the UK have called in sick, with women more likely to feel guilty than men when “pulling a sickie”.

In addition, the survey established that over half of workers who participated felt guilty for phoning in sick, because of the stress they then left on co-workers who had to pick up their work.

Some of the most ludicrous excuses range from; “There are cows in my garden so I cannot get to work”, “I lost a darts tournament last night and I am too traumatised to come in to work today”, “I have blisters from wearing new shoes on Saturday night.”

Other excuses included, “I left my work uniform on the bus”, “My hamster is sick and has to go to the vet”, “My boyfriend changed his relationship status on Facebook to single”, “I’m having a BBQ at the weekend and need time to prepare for it.”

The CV-Library identified that the main reason employees called in sick was due to tiredness and lack of sleep. 65% of 55-64 year olds who participated in the survey admitted that they occasionally did not go in to work due to lack of energy.

15% of participants said that they did not go into work because they could not be bothered and 13% had “other plans”.

It was further identified, that generally managers were reasonably tolerant and 86% stated that their line manager was understanding when they had to take a sick day.

Lee Biggins, who is the founding director of CV-Library was reported to state: “Honesty was very important in the workplace as trust from an employer is always vital.”

“While it’s all too easy to come up with an excuse for not turning up to work, it’s important to think about the bigger picture and wider implications of your absence.”

“In today’s working world, it is clear professionals are still taking unnecessary sick days, giving a whole host of excuses for not turning up to work. But while it might seem like a good idea at the time, many workers are feeling the guilt, recognising that their decisions have a wider impact on their team and work load.”

How employers can minimise absence and lateness

As well as conducting a return to work interview, employers can also address workplace issues in order to minimise absence. ACAS recommend that employers and line managers assess the quality of management, working relationships, job design, employment relations, communication of information and flexible working arrangements.

Further, employers should make their employees aware that all unauthorised absences will be noted and investigated. By doing this, employees will be less inclined to take random sick days without cause.

Employment Law Support for Employers