Holiday pay - more case law on the issue of untaken leave

Historically, many employers have taken the view that if an employee fails to take leave in the holiday year in which it is due then this leave will be lost. However, there have been recent changes in the law which have now clarified the situation for both employers and employees alike.

The case of NHS Leeds v Larner

In the case of Larner, Mrs Larner had her employment terminated by NHS Leeds after a prolonged period of sickness leave. Mrs Larner was absent from work sick throughout the whole of the holiday leave year 2009/10.  She was dismissed from her employment early on in the 2010/11 holiday leave year. NHS Leeds refused to pay her for the leave not taken in the year 2009/10.

The decision of the Court was clear. Leave could be carried over into the next year. No request need be made to allow this to happen. Mrs Larner was entitled to be paid for the leave she had been prevented from taking at termination, which was very early on into the next holiday leave year.

The case of Sash Window Workshop v King

The facts of the case of Mr King are perhaps not important. In fact, he lost his appeal in the EAT who said that the employment tribunal should not have allowed his claim for unlawful deductions as the loss in the case was compensation under the Working Time Regulations for not having the benefit of taking holiday. Unfortunately, his claim was out of time and therefore had to fail.

However, the important principle established in this case was that the EAT stated that sick leave may not be the only circumstance that could act as an impediment that could prevent an employee or worker from taking his entitlement to leave in a particular year of holiday leave. As such, circumstances beyond the control of the employee or worker which prevent them from taking leave in the relevant year should therefore allow the said leave to be carried over into the following year.

What does this mean for employers and employees alike?

If an employee has good cause for not taking his or her holiday entitlement within a specific holiday year then the employer must allow the employee to carry over any untaken holiday entitlement into the next holiday year. A failure to do so will lead to proceedings being taken.

What action should employers take?

• Employers should carry out a review of their contracts of employment and staff handbooks so as to make sure that their employee documentation is up to date and reflects the law as it stands.
• Employers should carefully record holiday leave and be aware of any potential difficulties that any employee or worker may face towards the end of the holiday year that may entitle them to carry over their untaken leave.

We hope that you have enjoyed this blog and found it to be informative. The blog represents the thoughts of the writer and is not meant to be specific legal advice to be relied upon in any particular set of facts.

At Chiltern HR we are a bespoke employment law practice, offering HR support and software to both small and large employees alike. For more information view our website at www.chilternsolicitors.co.uk or email us at info@chilternsolicitors.co.uk. Our office number is 01582 439795.

Please leave a comment about our blog as we love to receive your thoughts and comments. 

How do overtime payments affect holiday pay?

Traditionally, most employees are paid a flat rate for holiday pay. This will be their normal weekly wage less any overtime, commission or other payments. However, in recent months there have been a number of landmark decisions which has completely changed this position.

The history
In the briefest of terms, the right to paid holiday was introduced but the government of the time did not set out how a weekly wage was to be calculated. Further legislation from Europe provided no further guidance. After the Williams v British Airways case, discussed at our blog dealing with commission and holiday pay, further challenges to the law were inevitable.

The cases of Bear Scotland, Hertel and AMEC
In all of these cases, employees took their cases to the Employment Appeals Tribunal (EAT)  seeking a ruling on how a week's pay should be calculated. The EAT decided that, in the case of overtime which was mandatory, this should form part of the calculation of a week's pay. The same will no doubt apply for overtime that is not guaranteed but forms part of normal remuneration due to its regularity. Occasional overtime is not included.

What does this mean for employers?
The effect of the decisions is that employers will need to look very carefully at the issue of overtime payments and how they are made. If they find that their overtime worked is caught by these decisions then the employer will need to allow for overtime payments in future holiday payments.

Can claims be made by employees for back holiday pay?
The decision of the EAT seems to be against this idea. The Tribunal decided that the holiday pay affected would only be the first 20 days as this is what European legislation allows for. The additional 8 days will be paid at the normal weekly rate as will any additional discretionary contractual days. However, claims dating back three months may be seen.

Is there any good news for employers in this area?
Sadly not. The estimates are that holiday pay costs will increase between 2-4% and there is also income tax and national insurance to consider.  There seems little doubt that the costs involved in staff taking holidays will increase for most employers. Whether this leads to employers being reluctant to sanction overtime or seeking variations to contracts of employment in relation to commission payments remains to be seen.

Summary
Our blogs on holiday pay have been brief and are designed to provide a quick oversight to changes in the law in this important area. If you would like to receive a more detailed note of the problems surrounding holiday pay please email info@chilternsolicitors.co.uk.

This blog is designed to give an overview of the law and should not be relied upon for advice in relation to any specific employment or staffing issue. If in doubt always seek legal advice.

If you have enjoyed this blog or have a comment to make we would love to hear from you. Please leave a comment and we will get back to you as soon as possible.



For information on how we can support your business with HR packages and software to suit every size of business please give us a call on 01582 439795 for a no obligation chat. Alternatively email us at info@chilternsolicitors.co.uk  

Holiday pay and commission - how does one affect the other?

There have been a number of recent cases on holiday pay and how payments of commission and overtime may influence what an employee is paid when they are on holiday. We have written a separate blog on the issue of holiday and overtime which we invite you to also read.

For many years, companies have tended to pay employees their normal weekly rate when they have been on holiday. This has meant that many staff who may receive a low basic wage and large sums of commission are significantly affected financially when they take holiday leave. Indeed, this may mean that staff choose not to take all of their holiday entitlement.

The problem
The main problem with holiday pay is that the government who introduced the Working Time Regulations did not set out how a week's pay should be calculated. This led to employers relying upon the definition in the Employment Rights Act of the normal rate of pay or, if this varies, the average pay over a twelve week period.

Lock v British Gas
This case is now the main authority for holiday pay and commission. Mr Lock was a salesman. More than half of his salary was commission.  He took his case to Europe and successfully argued that his holiday pay should take into consideration his commission payments. The Court stated that if a person earns far less in wages when they are on holiday, they will be less likely to take holiday. This defeats the purpose of employment legislation guaranteeing a certain amount of holiday entitlement to employees of member states.

Where does this now leave us?
With immediate effect, all employers should be calculating holiday pay in accordance with the Lock decision and therefore including commission in such payments. The Lock case has been referred back to the UK Tribunals to decide whether commission should be calculated over the 12 weeks before the holiday is taken or the preceding 12 months. The European Court seems to prefer the 12 month approach but employers may wish to adopt the 12 week approach until matters are final clarified in 2015. 
Employers must however act now and cannot simply wait for the UK Tribunal to decide whether the relevant period is 12 weeks or 12 months.

This blog sets out the law as we see it in relation to holiday pay and commission. It is not intended to be specific legal advice in relation to an employer or employee and must not be relied upon a such. If in doubt any person should always seek legal advice.

We have written a separate blog on holiday pay and overtime and hope you will take a look at that as well. We love to read your comments upon our blogs. Please feel free to therefore leave your thoughts and comments.

Chiltern Solicitors is a specialist employment law practice which offers a wide range of services to both employers and employees. We are particularly proud of our HR service for employers called Chiltern HR. For more details call our team on 01582 439795 or email info@chilternsolicitors.co.uk

Thanks for reading.

Staff Christmas Parties - Don't let your business suffer a New Year hangover with an ET claim

We all love Christmas, the opportunity to let our hair down and have a few days off to spend with friends and family. However, the staff Christmas party can often lead to issues arising between members of staff that need to be either nipped in the bud or prevented from happening in the first place. Many people know an employee who has experienced issues at such parties.

There are a number of things that any employer needs to be aware of when contemplating arranging such a party. Staff also need clear directions on what is expected of them or, more importantly, what is not expected of them.

Invitation to attend
Clearly all staff need to be invited to attend. Some staff may not celebrate Christmas and may not wish to attend. If this is the case then they should be given the opportunity of taking time off rather than attending. The same may also apply to other staff who may just choose not to attend. Staff cannot be forced to attend and enjoy themselves. We have all worked with 'the office misery' from time to time!

Location
It is important that all staff understand that the location of the office party is unimportant. It is still a 'works event' and will be viewed as an extension of the workplace. This was confirmed in the case of Stubbs, which involved off duty police officers at a works social event. Behaviour should therefore be similar to that expected in the workplace. This clearly means no inappropriate behaviour etc which may upset other members of staff, especially those of the opposite sex.

Guidelines
Let staff know if there is a dress code and that their behaviour needs to reflect the fact that this is an official works event. Further, any issues of unacceptable behaviour will be dealt with under the company disciplinary and grievance procedures. Ensure these procedures are up to date as many employers are still relying upon out of date procedures.

Alcohol
If staff are drinking alcohol then the employer needs to ensure that staff are not driving either on the day of the event or indeed the following day.  It may be sensible to have the event on a day when people are not getting up to travel to work early on the following day. The employer may wish to provide transport for staff so as to ensure that all arrive home safely. Finally, it is important to remember that not all staff drink alcohol so plenty of soft drink alternatives should be available. The same will apply to food and ensuring that people's individual dietary requirements are catered for.

Poor behaviour
If there is a problem with behaviour then it is best to get the person or persons to leave. Any disciplinary issues can be dealt with after the holidays. If any grievances are raised about behaviour it is important that these are not dismissed out of hand and that they are dealt with properly and in accordance with company procedures. Poor behaviour can involve office gossip some weeks later. In the case of Nixon, an employee of a solicitors firm was held to have been constructively dismissed and indeed discriminated against as a result of such gossip.

Summary

• Enjoy Christmas and any office party but be sensible and ensure your staff know what is expected.
• If you are seen to be reasonable and plan matters hopefully your staff will act in a similar fashion.
• If there are problems don't say something stupid whilst under the influence of alcohol. Send the people in question home and give yourself time to form a view on how to deal with the matter when you have a clear head.

This blog represents the views of the author and is not intended as specific legal advice on any particular issue and should not be treated as such. If in doubt always seek legal advice. 

Please leave your comments or questions as we welcome feedback. 

If you wish to discuss any employment law issue then please get in touch with us at info@chilternsolicitors.co.uk or call us anytime on 01582 439795. We have a specialist HR package for SME's which is designed to safeguard your business against any potential staffing issues.

We need to discipline a member of staff but have no idea where to start

Not knowing how to discipline staff can be a real issue for both smaller and larger employers. Even employers with dedicated HR staff often make very basic mistakes which can prove costly. So where do you need to start.

Disciplinary and grievance procedures
The first thing that any employer needs to be aware of is the need to have a procedure written down for dealing with such matters. It is also important to keep this up to date. We have seen many documents in recent years that have not been updated and do not comply with the latest ACAS codes.

Agree who will deal with matters
Ideally, the process can involve up to three people.The first person will carry out the investigation and establish so far as possible what has occurred. They will see the member of staff in question and will speak to other members of staff and other witnesses. This person will then decide how the matter will proceed.

Write to the person inviting them to a meeting
This does not have to be done but is good practice and will impress a tribunal if matters ever go that far. The letter should point out that if the person does not attend then the investigation may proceed without them.

Hold a meeting
There is no right to be accompanied at this first meeting. This is a fact finding exercise. However, notes should be taken and agreed if possible.

Decide what actions is necessary
The investigation decides if the matter proceeds any further and if so, on what basis. For example, if the company has a history of giving a final written warning for people who use their mobile phones whilst driving on company business they cannot suddenly dismiss a member of staff without good reason as he will be able to argue that the decision is unfair as others have been treated differently in very similar circumstances.

Write a 'step one' letter
The step one letter tells a person why they are being subjected to disciplinary proceedings. Do not be at all vague in this letter. It is important that an employee knows what the issue is and what evidence this is based upon so that they can prepare properly for the meeting. They are entitled to be accompanied by a work colleague or approved trade union official. Make sure that the letter gives sufficient notice. We would suggest no less than two working days. The letter should make it clear whether or not dismissal is an option.

Hold the disciplinary meeting
Ideally, the investigator will present the case for the employer and will produce minutes of the meeting and all of the witness statements. Witnesses can give evidence for both sides. The employee should be allowed to ask questions and sum up his or her case. Do not rush into any decision. If more information is required then obtain it and reconvene at a later date. Take minutes and get these agreed.

Give reasons for any decision in writing and outline what findings were made
The person making the decision should be prepared to make findings as to fact. For example if the misconduct is fighting in the workplace and the employee argues that he acted in self-defence, the person conducting the decision should be prepared to make a decision upon whether this explanation was accepted or not as the case may be. The findings will not usually be questioned by a tribunal so long as they are seen as reasonable and that the matter was given due consideration.

Be prepared to have an appeal
Any employer who is dismissed will normally appeal against the decision. After all, they have little to lose in doing so. The appeal should be heard by a more senior member of staff with authority to overturn the decision. We have been involved in a case whereby a junior manager was allowed to conduct the appeal and admitted in evidence that he knew he could not overturn his boss's decision to dismiss. Needless to say our client won his claim for unfair dismissal. The same guidance applies as to being accompanied and taking minutes.

What if you don't have three staff who can deal with such matters
Any employment tribunal will always consider the size and resources available to any employer when dealing with such matters. This means that, technically, if there is the business owner and a small number of employees then the owner may carry out the investigation, disciplinary hearing and appeal. However, they would be better advised to involve at least one other person in the process such as the company solicitor, accountant or another business owner.

Summary
Preparation and good procedures in place are key. If you fail to plan then you are planning to fail has never been truer than in disciplinary issues.

The above comments are the thoughts of the author and are not to be taken as being legal advice on any particular issue. if in doubt always seek legal advice.

At Chiltern Solicitors, we are happy to speak to you at any time on employment and staffing issues. Call us on 01582 439795 or email info@chilternsolicitors.co.uk. We have a regular HR and employment bulletin providing regular and helpful employment advice to all businesses. Drop us a line to subscribe to future issues.

Why should employers ensure good personnel records are kept

Personnel records are key to any business. Whether an employer has two staff or two hundred there is simply no excuse for not keeping good staffing records. If ever there is an issue, these can become invaluable should an employment issue arise. Further, they can be used as evidence in tribunal proceedings to defend claims for unfair dismissal.

Quite often an employer will speak to a member of staff about their employment. This could be to do with a wide range of issues such as turning up late, poor performance or taking too many sick days. Having good records will make carrying out disciplinary proceedings so much easier. It can also assist in issues of redundancy where the employer is seeking to keep the better staff and be able to justify who he chooses to keep and who he chooses to let go.

What records need to be kept

• any issues of attending late or unauthorised absence.
• any minor acts of misconduct or poor performance that are not formally dealt with.
• levels of sickness absence.
• any complaints against the member of staff by colleagues.
• any type of appraisal used.
• if the employee is praised for good performance.

Why are these issues key

• employees are now more aware of their rights and are likely to appeal disciplinary findings and dismissals.
• it allows the employer to build up an approach that shows consistency and fairness in dealing with staff.
• most importantly it allows for employers to justify their findings to a tribunal and defend any claim an employee may make against them.
• many employment tribunal cases are won or lost on the quality of the procedures adopted by the employer. Any tribunal chairman will be looking at these procedures closely. Decent procedures and consistency in approach points towards a fair minded employer who is more likely to be supported by a tribunal.

What do I need to do as an employer

• Introduce systems for dealing with issues such as absence and poor performance.
•  Make sure staff who are entrusted with dealing with these matters are well trained and understand the issues involved and what is required.
• Keep good records and be prepared to produce these to the tribunal and to be able to justify decisions made. 

The key is that an employee who is seen to act reasonably and have decent procedures in place will earn the respect of their employees. Thus the employees will know that there are implications for attending late or taking too many days off sick. This will therefore lead to increased performance and a more contented workforce. Problems can therefore be prevented from happening in the first place.

The above views of those of the author and are not meant as specific advice in relation to any specific employment issue or case. If in doubt, always seek legal advice.

At Chiltern Solicitors we can assist you in relation to all of your staffing and HR issues. For more information on employment law services available please contact us at info@chilternsolicitors.co.uk or have a look at our website at www.chilternsolcitors.co.uk.

We have a HR system that has been specifically designed to help small and medium sized businesses manage their staff. For more information give us a call or see our website.

If you have enjoyed this blog or if you have any comments to make upon this blog and your own experiences of the advantages of keeping good records then please leave a comment below.

References - should we agree to requests for information

Writing a reference
Writing a reference for an employee seems a perfectly reasonable thing to do. After all, the new potential employer will need to know if the employee turned up late every Monday morning or had a bad attitude to female colleagues. On the other hand, the new employer may want confirmation that their new employee is a star in the making and that you are very sad to be potentially losing him.

What are the potential problems
It is important that any reference is true and accurate. It may be that the employee was late every Monday morning. However, the author of the reference may not have known that the employee's supervisor had allowed this and a shortened lunch break so that the employee could drop off his or her son at school.

In writing a reference there is both a duty to the new employer and the previous employee. If you make a false statement you could be sued for damages by the employee if he or she is not successful in obtaining their desired new role.

Again, the same is true if an employee is described in glowing terms by his previous employer as they are glad to see the back of him. However, the truth is that he is lazy and has a bad attitude. Further, he is a disruptive influence and has been disciplined a countless occasions. In this case the new employer may seek to sue the old employer for damages based upon the fact that they have taken on a new employee who they would never had employed had they known all of the facts of his previous employment.

Requests for a reference
Most employers deal with requests in one of three ways. The first way is to refuse to give any type of reference. This is not particularly helpful to anyone. Further, most employers seek information by way of references and therefore they should feel able to meet any requests in a positive way.

The second way of dealing with references is to send a standard reference giving such details as job title, dates of employment, salary and sickness record. Again, this is of limited assistance to the new employer and may not help the employee in his search for new employment.

The third and final way of dealing with requests is to give a full reference and provide all information requested. It is important that the reference is prepared by a person with authority to write the reference on behalf of the company and even more importantly is aware of the employee and has the knowledge required of the employee to write the reference. If the employee was dismissed then this should be stated and the reasoning behind the dismissal should be explained. If the person left by way of a settlement agreement then this should be so stated.

What steps do we need to take as an employer

• Have a policy on references and stick to it. Make staff aware of this policy.
• Make someone in the Company responsible for writing references and ensure that others know that they have no authority to reply to requests on behalf of the Company.
• If an individual is asked to write a reference then they should do so as an individual and not as a representative of the Company. They should make this clear in the reference that the views expressed are those of the individual and not necessarily the Company.
• Include a disclaimer with all references excluding any liability for any inaccuracies. However, this will only be over very limited effect.
• If you wish to adopt a policy of no references or limited references then make it clear that this is your policy for all employees.
• Be reasonable and be truthful. If you are both then there is little risk in providing references.
• If you are at all concerned by a request then seek legal advice.     

The above blog represent the views of the author and is not meant to be relied upon as specific legal advice on any particular set of facts. If in doubt always seek legal advice.

At Chiltern Solicitors, we have a HR system to take care of all of your staffing needs. If you have ever struggled to get some quick advice on an employment issue or have failed to find previous notes on a staffing issue then the system is for you. Ever business employing staff will benefit from having advice readily accessible, staff documents kept securely and in order and a telephone helpline. For more information watch the video on our website at www.chilternsolicitors.co.uk or call us on 01582 439795 for a free demonstration and to discuss how the system can be set up to help you.  

At Chiltern Solicitors we are experts in employment and staffing issues. For regular updates on employment law issues sign up on our website. www.chilternsolicitors.co.uk or email us at info@chilternsolicitors.co.uk 

What is the difference between misconduct and gross misconduct

Many employers struggle to understand the difference between misconduct and gross misconduct. However, it is important that this is dealt with properly by employers. After all, an employer is entitled to dismiss without giving notice to an employee is they are deemed to be guilty of gross misconduct. This will not apply to a case of simple misconduct where dismissal will still apply but notice is required to be given to the employee.

What amounts to misconduct
The law does not define misconduct. However, over time, certain issues have been identified as amounting to misconduct. We have outlined a few examples below:

• theft or dishonesty
• violence or fighting
• unauthorised absence
• disobedience
• misuse of internet/social media
• being under the influence of alcohol/drugs
• harassment of staff/customers
• behaviour which undermines good faith in the employee

What amounts to gross misconduct

Again there is no definition of what amounts to gross misconduct or indeed what the difference is between misconduct and gross misconduct. Generally speaking, the more serious the act of misconduct, the more likely it is that an employer will be entitled to rely upon a finding of gross misconduct. Virtually all of the examples given above can amount to misconduct or gross misconduct and will have to be viewed on a case by case basis. We have however given some examples below as to how the facts of a particular case may influence what decision an employer may reach.

Theft

A minor theft such as taking a colleague's chocolate bar may be seen as misconduct rather than gross misconduct. However, if the employee works with money or in a position involving a high degree of trust then any act of dishonesty may affect how the employer perceives the employee and may lead them to find that the act does amount to gross misconduct.

Violence

An act of violence in the workplace will always rightly be viewed as being serious. However, what if the act of violence takes place outside of the workplace. For example an employee may be cautioned by the police for a minor assault whilst out drinking. If this is the case then other issues will come into consideration such as any adverse publicity and the role in question. For example, a window cleaner may escape dismissal in such a case whereas a carer or social worker who works with vulnerable people may be dealt with very differently.

Misuse of social media

Again this is a question of degree and, to some extent common sense. An employee using facebook or twitter on work's time would not normally face summary dismissal. However, if the same employee was using social media to harass a colleague or make inappropriate remarks about his employer then he may face dismissal.

What does this mean to your business?
Any business must know what amounts to misconduct and what amounts to gross misconduct when dealing with disciplinary issues. Get it wrong and you will face a claim for unfair dismissal with awards averaging between £5-10k. Far better to seek an hour's legal advice so you are aware of your options and how to deal with matters properly and effectively. 

Summary

If dealing with misconduct issues, investigate thoroughly and establish the facts then consider the following points:

• How have others been dealt with for similar matters
• What is the effect upon the business
• What is the effect upon other employees
• Has trust and confidence in the employee been affected
• If the matter took place away from the workplace is this a relevant issue in how the matter is viewed

This blog contains the views of the author and is not intended to be specific legal advice on any particular set of facts. If in doubt then always seek legal advice.

At Chiltern Solicitors we are experts in providing workplace solutions to your staffing issues. Call us on 01582 439795 or email us at info@chilternsolicitors.co.uk. Please take a look at our website at www.chilternsolicitors.co.uk

Why employing staff is a little like running a car

When you first read this headline it makes little if any sense. However, employing staff is very much like running a car and the same principles can be applied to both. We all know that when your car has problems the bills involved can be very large indeed. This also applies to your business if you fail to deal with  staffing issues in the correct way.

An employer who got things wrong which costs the Company £10k
There are many examples we could give of Companies getting staffing issues badly wrong. However, a recent case  we will discuss involves a bus driver in the Tamworth. Mr Blower was employed by a local Company and was on sick leave, suffering from arthritis and diabetes. Whilst he was on sick leave he received a letter from his employer stating that he had been sacked.

Mr Blower took his employer to Birmingham Employment Tribunal and won his case for unfair dismissal and disability discrimination. The employer was ordered to pay him £10k in compensation after both claims were successful.

Where did the employer go wrong?
We do not know all of the facts but it appears that a letter was sent to the employee just dismissing him. It does not appear that the employer considered having a meeting with the employee to discuss matters. It may have been open to the employer to employ the driver in a different role or make reasonable adjustments to his driving role. It may have been possible for the Company to consider a health related dismissal based upon capability grounds. However, it appears that the employer may have just sent the dismissal letter.

How could the employer have dealt with things differently?
At this stage, we come back to our comparison  of a business and a car. Most of us are capable of dealing with simple day to day maintenance with a car. With a little bit of guidance and common sense, we can check the oil, tyre pressures and top up the radiator. However, when the service light comes on we don't go to the garage and reach for the tool box as most of us simply don't have the skills or knowledge involved.

In a business, most of us can deal with the simple staffing issues such as holiday entitlement, an application to leave early and even minor issues relating to performance. However, when the 'service light' comes on in the business such as an employee being absent and the matter needing to be dealt with, many employers do not have the knowledge to deal with the matter correctly. This was certainly the case here and the cost to the Company was £10k.

What can we do as an employer?
As mentioned above, most employers should be capable of straightforward day to day maintenance of their business and any staffing issues. However, if matters are more complicated then the employer needs to recognise that the 'service light' has come on and that help from a solicitor or HR advisor needs to be sought. Your car works better if it receives the servicing it needs when required. Your business is no different. If staffing matters are dealt with effectively and correctly then staff are likely to be happier and more importantly there will be no nasty £10k surprises.  

The above views are those of the author and should not be relied upon in relation to any specific legal matter. If in doubt always seek legal advice.

At Chiltern Solicitors, we are experts in proving HR support. Please see our website at www.chilternsolicitors.co.uk for more details or call us on 01582 439795. To receive regular updates on employment and staffing issues email us at info@chilternsolicitors.co.uk.

Run a small business, no HR staff, managers or fellow directors - how can you still effectively discipline staff ?

Any employer is under a duty to deal with disciplinary matters quickly, efficiently and effectively. However, this can be an issue for smaller business where there are perhaps less than ten employees. This can mean that there are no HR staff, no line managers and just the owner of the business dealing with all of the daily issues.

What does the law require in disciplinary issues?
The law requires that the employer carries out an effective investigation and establishes the facts before deciding how to proceed. If it is decided to proceed further then the next step is a disciplinary hearing. Normally, in larger organisations, the investigation and disciplinary hearing will be carried out by a different person. Further, if the matter proceeds to an appeal then then a third person is normally required.

How can a smaller employer overcome these obstacles?
There is nothing to prevent the owner of the business from carrying out all three roles. In considering any claim for unfair dismissal, an employment tribunal will always consider the size and resources of any organisation. Therefore the owner could carry out all three parts of the procedure so long as he did so fairly and consider all issues properly.
This is however far from ideal and any tribunal may ask what other options were considered. One option could be to train a member of staff to deal with the investigation staff of the proceedings and make a decision as to whether the matter should proceed further. This is far from ideal as it may lead to resentment amongst the staff and the business owner may not want to delegate such a role to a member of his staff.
A better option will be for the owner to deal with the investigation and disciplinary issue himself and then get a third party to consider the appeal. This could be for example the company accountant or a friend of the owner or his spouse. It will be imperative that, if this option is considered, that the person has full authority to make whatever decision they feel appropriate and that this is confirmed to them in writing.

Can the Company use an external person to oversee and carry out the process?
If the owner does not want to use friends and or family he can hire the services of an employment solicitor or HR consultant to oversee matters. Indeed, this person can be given authority to make any decision on behalf of the Company.

What do I need to do as a small employer if a disciplinary matter arises?

• Send the member of staff home for the day. Tell them they are not being suspended and are to come back to work the following day once you have considered the matter. 
• In this day formulate your plan for dealing with the matter. If you need legal advice then seek it.
• Ensure that you have disciplinary procedures and that these are up to date.
• Carry out an investigation and speak to whoever you need to so as to establish the facts.
• If necessary hold a disciplinary hearing. Tell the member of staff the issue in writing and confirm if dismissal is an issue. Remember they can be accompanied to this meeting.
• Hold the meeting and take notes. Make the decision and advise the employee of the outcome and the reasons in writing. If necessary advise of the right of appeal.
• If there is an appeal again they can be accompanied and notes should be taken. Confirm the outcome and the reasons in writing.

Summary
There is no reason why a smaller employer should not be able to discipline staff just as effectively as a larger employer. All that is needed is a plan of action and some common sense.

The views here are not meant as specific legal advice in relation to any particular staffing issue. If in doubt always seek legal advice.

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Can my Company have a drink and drugs testing policy

Any employer has a duty under Health and Safety Laws to ensure the health, safety and welfare of employees at work. If an employer allows an employee to work whilst under the influence of drink and/or drugs then they can face prosecution. Clearly, road traffic laws also prevent workers from being able to drive whilst under the influence of drink or drugs.

What can I do as an employer
The first thing any employer can do is to introduce a policy on drugs into their employment documentation. We would recommend that this is in the staff handbook and also in the contract of employment. The contract should set out that an employee is expected to comply with any reasonable request to undergo a test. A failure to comply can lead to a breach of contract, disciplinary proceedings and possibly dismissal.

What is this is not in our contract
The answer is simple. Get a policy drafted, amend the contracts and sit down with your staff and explain why you are taking the action that you are taking.

Where do we go next
Once the policy is introduced, staff need to be trained as to what to look out for as signs that someone may be under the influence of drugs. Clearly, being under the influence of alcohol is far easier to detect. Once suspicion is raised the employee needs to be challenged. Systems then have to be in place for a test to be provided and analysed. This is far from easy and expert help should be sought.

Can the employee be forced to undergo any test
An employee cannot be forced to undergo any test. They cannot be held down and a sample of their hair or blood etc taken. This would amount to an illegal assault upon the employee.

What can we do if the employee refuses
If the employee refuses as part of the investigation then they should be told that the investigation will  proceed and could lead to disciplinary action. Make them aware of the implications of refusal. The employer will have to form a view upon whether the employee was under the influence of anything and how this impacted upon their role.

There is a second issue that the employee could also be disciplined on the basis of a failure to follow a reasonable instruction during the course of their employment.

If any employee refuses to allow a test to take place can we dismiss
Potentially an employer can dismiss on the basis of a failure to follow reasonable instructions. Each case would however depend upon its own individual circumstances.

If an employee is under the influence of drink or drugs can we dismiss
Again the answer is potentially yes. This can be on the basis of gross misconduct if they are operating machinery or potentially a loss of trust and confidence in the employee. There is a lot of case law in this area. Each case will very much depend upon its own facts.

Summary

• Have a policy and discuss with staff
• Ensure that staff know what signs to look for
• Proceed with an investigation and disciplinary action
• Be aware that staff cannot be forced to take part 
• Be consistent in your approach

This blog represent our views on the issues discussed. It is not intended to be specific legal advice upon any particular set of facts. If in doubt please seek legal advice on any employment law issue. We can be contacted on 01582 439795 and will be happy to assist you with your staffing issues.

Our website is at www.chilternsolicitors.co.uk, which has a news page where you can be updated on employment and HR issues. You can also follow us on twitter @chilternsols.

  

Changes to the right to request flexible working

On 30 June 2014, the Flexible Working Regulations are amended. This will have a significant impact upon businesses and their employees.

What are the key points at present in relation to flexible working?

• Employees must have 26 weeks continuous employment
• Employers have to by law consider applications
• An employee can appeal against a refusal by an employer
• An agreement can be negotiated
• One application is allowed every 12 months
• Parents with children aged 16 or under (18 if disabled) and certain carers can apply

What are the key changes?

• The request can now be made by an employee with 26 weeks service
• The application need not be linked to children or care requirements
• The employer is not legally obliged to consider the matter but must consider the request in a reasonable manner 
• Employers have more flexibility to refuse requests on business grounds

What should I do as a reasonable employer?

The first thing any employer needs to do is to update their policies in relation to flexible working. This will include ensuring that staff are aware as to how they can make an application, how any when meetings will take place, how and when appeals will be heard and that the employer will fairly consider all requests.

How to handle a request

• Acknowledge the request and send the employee a letter confirming this
• Send the employee a copy of the policy document
• Have a meeting/discussion if the request cannot be agreed upon receipt 
• Allow the employee to be accompanied to any meeting (good practice not a requirement) 

How to decide a request

Consider the affect upon the business and balance these against the benefit to the employee. Consider any cost implications.

On what grounds can an application be refused?

• Additional costs to the business
• Inability to organise other staff
• Impact upon quality
• Impact upon customer demand
• Impact upon performance
• Planned changes to the business

Summary

As with any change to any law, it is unclear whether these changes will have a significant effect upon employers and indeed employee in the workplace. However, it is imperative that employers are aware of these changes and how they should deal with any requests in the future. 

The above comments are not intended to be specific legal advice upon any particular set of facts and should not be relied upon for the same. If in doubt, an employer or an employee should seek legal advice. If you wish to discuss this or any other employment issue further then please contact us on 01582 439795.

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How do we conduct a disciplinary hearing?

From time to time, disciplinary issues arise in any workplace. They need to be dealt with fairly, consistently and promptly. Any Company should, in any event, have disciplinary procedures in place that are up to date with present legislation.

What is the first step to take?
The first step in any process is to identify the issue involved and to investigate. It may be that poor performance, for example, is down to a lack of training or supervision and therefore can easily be resolved by intervention and guidance rather than by disciplinary action. An investigation meeting can be held to establish the facts. Witnesses can be identified and statements can be taken.

If there is a case to answer what do we do next?
The next step is to send the employee what is commonly known as a 'step one' letter. This should set out what the issue involved is and when and where the meeting will take place. Reasonable notice should be given and a copy of the evidence included. the employee must be told that he can be accompanied and that if he persistently fails to attend meetings, the matter may proceed in his absence. The letter should also indicate if dismissal is a possible sanction.

Who should conduct a hearing?
The hearing should be conducted by a senior manager who has authority to make any appropriate decision. It should not be the same person who conducted the investigation.

How should the hearing proceed?
Notes should be taken and agreed if possible. The hearing can even be recorded and a transcript prepared. The employer should present their case and witness statements can be read. Alternatively, witnesses can be called to give evidence. Questions can be asked of witnesses. The employee will then present his or her case and will be given the opportunity of calling witnesses.

When should the decision be made?
In very straightforward cases the decision can be made there and then. The person chairing the meeting can take as long as they require and may wish to consider the matter overnight. Each case will depend upon its facts.

What happens next?
The employee should be notified in writing of any findings made and the decision arrived at. They should also be told of their right to appeal against the decision to a more senior manager.

Summary

• Investigate thoroughly
• Send a 'step one' letter
• Right to be accompanied
• Make notes and agree them
• Come to a decision and justify it in writing
• Remind the employee of their right to appeal

This article gives our thoughts on how a disciplinary process may proceed.It is not meant to be advice on any particular set of facts. If in doubt legal advice should always be sought. We have considerable experience in employment and HR issues and can be contacted on 01582 439795.  

Zero Hours Contracts - What's all the fuss about

What is a zero hours contract
A zero hours contract is where an employee is retained on a contract of employment but is not guaranteed any actual hours of work by his employer. This means that the employer has flexibility in when he calls upon the services of the employee.

What about the employee
The employee may also benefit from such a contract. A student, retired person or housewife may welcome the flexibility of working when and if they choose. However, some zero hours contracts require the employee to be available to work for the employer during certain hours, which is clearly a step too far. This can lead to an employee turning down other work only to sit at home awaiting their employer's call only to receive no such call and therefore no income for that day.

How did such contracts come about
The truth is that this type of contract has been around for many years and has been commonly used in the food business as well as in tourism. A restaurant for example may have a very quiet day and will want to therefore have the flexibility to send staff home or to ask staff not to come in. Similarly, a theme park or tourist attraction will require far more staff when the weather is good and will also want the flexibility to have less staff working if circumstances and the British weather dictates.

What therefore is the issue
The controversy with such contracts is that they have now been adopted as the norm by many national firms and companies on the high street. It is arguable that many of these companies do not need and cannot justify such contracts. However, they merely use them as they provide the absolute minimum in employment rights to staff and you can in essence achieve a workforce of agency staff without the costs involved in recruiting via an agency. 

Should such contracts be outlawed
In our view no. However, they should be used far less than they actually are and an employer should have to justify their use if required to do so.

This blog is designed to share our views on zero hours contracts. It is not intended as legal advice and should not be read as. If you wish to discuss zero hours contracts or indeed any employment law issue then please call us on 01582 439795.

Our website is www.chilternsolicitors.co.uk or follow us on twitter @chilternsols.

 

Can we proceed in absence if an employee does not attend a disciplinary hearing?

An employee may choose not to attend a scheduled disciplinary hearing. This is generally for one of two reasons. The first reason is that the employee does not want to face up to the matter in question. As such, they may simply refuse to attend any meeting or they may go off work and claim that they are sick with stress or something similar. This does not of course mean that every employee who is off work sick with stress is not suffering from the same.

The second reason is because of illness. What happens next will very much depend upon the type of illness and how long the employee is likely to be off work sick.

How do we invite the employee to a meeting?
As with any disciplinary hearing, it is important to write to the employee and advise them of what the issue is that you wish to discuss with them. They should also be advised as to whether the likely sanction will include dismissal.

The first letter should advise the employee that if they fail to attend the disciplinary hearing it will be adjourned on the first occasion. If they fail to attend a second hearing then the matter may proceed in their absence on the evidence available to the employer.

What if the employee fails to attend?
If we assume that the employee does not attend then the employer needs to consider the reason for non-attendance. If the employee is at work and simply will not follow a request to attend a meeting then he or she needs to be reminded that it is a reasonable request and the failure to follow such a request may lead to further disciplinary action being taken.

In the case of a failure to attend because of sickness the employer will need to consider the illness complained of and how this may impact upon the disciplinary process. Key features will include:

• the type of illness and whether this affects the employee's ability to participate in a meeting.
• the likely duration of the illness and the impact upon the business of continued absence.
• whether any reasonable adjustments can be made to the disciplinary process to allow matters to proceed.

Should we obtain medical evidence?

It is always advisable to obtain medical evidence in all but the most obvious of cases. This should include questions such as how long the illness complained of is likely to last, whether the person can attend a meeting and what adjustments can be made to allow a meeting to take place.

It is important to note that an employee does not have to consent to such a report being prepared and they can withhold their consent even after they have seen any report. If this happens then the employee should be reminded that the employer will proceed on the evidence available.

What if the employee fails to attend a second meeting?

If this happens then the employer may choose to proceed on the evidence available at that time. They may wish to allow the employee to make written representations or make other adjustments to the process. Whether or not the employer should proceed in absence will depend upon a number of factors including:

• the employee, their work record, disciplinary record, position and length of service
• the seriousness of the allegation and whether dismissal is an option
• any medical opinion and how long the absence will last for
• how cases such as this have been considered in the past
• what the disciplinary procedures say about proceeding in absence
• whether the employer genuinely believes that the employee is trying to avoid or delay the process    

Matters such as this really rely upon a little common sense. If for example there is a second meeting on the Tuesday and the employee has flu but will be back on the Friday then it makes no sense to proceed in absence. However, if the employee has a broken wrist and fails to attend a number of meetings, the employer may feel that the broken wrist does not impact upon the employee's ability to take part in a meeting and that the matter should proceed.

Summary of key points

• Write and advise of the issue of proceeding in absence
• Always consider obtaining medical evidence
• Consider the matter fairly and ask how an outsider may view the decision to proceed - was it reasonable in the circumstances.

This blog represent our thoughts on disciplinary matters being held in the absence of an employee. It is not meant to be taken as specific legal advice nor should it be applied to any particular set of facts. If in doubt always seek legal advice in such matters.

We have considerable experience in advising employers on disciplinary matters and can be contacted on 01582 439795.

For more information see our website at www.chilternsolicitors.co.uk or follow us on twitter @chilternsols

What are common mistakes made when dismissing employees?

There are a number of common mistakes made by employers which can lead to a finding of unfair dismissal by an employment tribunal. Whilst this may not lead to a significant award of compensation if it can be argued that the employer would have been entitled to dismiss in any even, it can still lead to unnecessary time and costs being incurred. Most mistakes are down to ignorance of the law or lack of planning and can easily be avoided.

1. Ensure that a disciplinary hearing is held. Do not dismiss without holding a disciplinary hearing.
2. Carry out an investigation into what happened prior to coming to the decision to discipline in all but the most obvious of cases.
3. Write to the employee and tell them what the issue is. Tell them whether dismissal is a possible sanction.
4. Remind the employee of his or her right to be accompanied by a colleague or trade union official.
5. Provide the employee with the evidence that has been gathered as a result of the investigation.
6. Ensure that the employee has sufficient notice of the hearing. At least one or two working days is ideal.
7. Make sure that the person conducting the disciplinary hearing was not involved in the investigation.
8. Listen to all of the evidence and allow the employee to present their case.
9. Take time in coming to any decision to dismiss. There is no need to rush any decision.
10. If the employee fails to attend on the first occasion adjourn matters. You can usually proceed on the second occasion subject to certain provisions.
11. Inform the employee in writing of the reason for dismissal and any findings made. If, for example, the employer relies upon a loss of trust and confidence state why such a loss has arisen.
12. Always remind the employee of their right to appeal the decision and ensure that the appeal is heard by a more senior manager.
13. Be consistent. If one employee has been dismissed for a certain act whereas a colleague has not then there should be good reasons for this.

In summary

• Carefully plan how you intend to deal with any disciplinary issue.
• Be aware of your own procedures and follow them.If you have no procedures then prepare some.
• If in doubt always seek legal advice before dismissing.

This blog sets out our thoughts on avoiding unfair dismissal claims. It is not specific legal advice on any particular set of facts and should not be taken as such. If in doubt seek legal advice. We are able to provide a HR system to employers that will provide you with all of the assistance that you need in dealing with staffing issues. Feel free to call us on 01582 439795. 

How to manage sickness absence in the workplace

Sickness absence can vary significantly from case to case. It can cover anything from an employee who suffers a broken leg to an employee who appears to take a lot of Mondays off work. How the matter is dealt with will very much depend upon the type of case.

Dealing with periods of short term absence
If an employee is absent for a number of occasions on short term sickness then the employer needs to consider the absence level of the employee and whether there is any pattern to the same. If the same day of the week is taken off or a lot of sickness happens before or after bank holiday then this suggests that there is likely to be an issue.

Investigating the matter and the disciplinary process
In such a case, the employer needs to follow the disciplinary process and firstly investigate the matter to see if there is a case to answer. This will involve the employee being called to a meeting to explain why he is absent on many Mondays. If there is no satisfactory explanation then the matter will proceed to a disciplinary hearing.

If the disciplinary hearing finds that the absences are not acceptable then the employee should receive a warning. It will not normally be justified to dismiss without previous warning having been given for similar conduct. Always remember the right of appeal.

How to gain improvement in attendance
The outcome letter should state that the level of sickness is not acceptable and that improvement is required. However, this in itself is not enough. If an employee has 20 days off work sick and is warned to improve then has 19 days off sick he cannot be disciplined again as he has in fact improved as requested. The employer needs to calculate the average days taken off sick by the rest of the workforce and come to a conclusion of what is acceptable.

Does this mean that any further absence over and above this level will lead to dismissal
Normally an employee will need to be on a final written warning to be dismissed. However, even if this is the case, there may be circumstances where it is not appropriate to dismiss such as cases of genuine and accepted illness.

Dealing with periods of long term absence
If long term absence is an issue, the employer may wish to dismiss on the basis of capability in that the employee cannot carry out his or her role and that, as such the contract is frustrated (can no longer be effective).

How should the matter proceed
If an employee is on long term sickness then the employee needs firstly to carry out an investigation into the absence. This investigation should consider:

• the nature of the illness and the effect on the employee to carry out their role
• when or if the employee is likely to be able to return to work
• the work record of the employee and how other cases have been dealt with
• whether any reasonable adjustments to the role can be made or if there is an alternative role 

Is medical evidence required

Medical evidence should always be requested in such cases. The doctor can be asked to consider the above issues. It is always advisable to contact an independent doctor rather than the employee's own doctor. 

Does the employee have to consent to a medical report

The employee does not have to consent to a report being prepared and, if they see the report, they can request that it is not shown to the employer. They should be made aware that if there is no report then the employer will proceed on the evidence available.

What if we decide to proceed

The employer should then write to the employee stating that a meeting will take place to consider whether the employee is capable of continuing in their role. They should be provided with all of the evidence available and be reminded of their right to be accompanied to the meeting by a work colleague or union official.

Making the decision
The decision is a difficult one as it may involve terminating the employment of an otherwise helpful employee who through no fault of his or her own cannot attend work. The key issue here is how long the absence will last for and whether the business can cope with the absence of the employee in question. The more the impact upon the business and the more difficult the absence is for the employer to deal with the easier it will be to justify dismissal.
As with any dismissal there is a right of appeal and the employee should be notified of the reason in writing and how the decision was reached.

Summary

• For short term sickness give a chance to improve to agreed levels
• For long term sickness try to obtain medical evidence and consider the impact upon the company 
• Follow the disciplinary and appeals process in either case  
• Act reasoanbly and be prepared to justify any decision

This blog is our thoughts on sickness absence. It is not meant as specific advice and should not be taken as such. It should not be applied to any particular set of facts. If in doubt always seek legal advice. We are experts in employment law and HR issues and can be contacted on 01582 439795. 

Do we need to provide a written contract of employment?

All employees have a contract of employment. Verbal contracts have the same legal status as a written contract but are more difficult to prove. The terms of the contract can be express or implied and can be provided by statute.

An express term is something that is usually in writing but can also be verbally agreed. This is something such as the hourly or weekly rate of pay. An implied term is something that is not in the contract that is written or verbally agreed but still exists. For example, it may be an implied term of the contract that the employer provides the employee with free tea, coffee and biscuits. Another implied term is that of mutual trust and confidence. This means that the parties will act reasonably towards one another.

When should a contract of employment be issued?
It is always safer to issue written particulars of employment. In doing so there is certainty as to what has been agreed and what each party can expect of the other. An employee is entitled to receive a written statement of their particulars of employment within two months of commencement of employment.

What should this contain?

• the name and address of each party
• the date of employment commencing and details of continuous employment
• rate and frequency of pay
• hours of work
• holidays
• sick pay
• pensions
• job title or description
• place of work and mobility clause
• length of notice required
• if fixed term contract date employment will cease 
• details of any collective agreement
• details of work outside UK
• disciplinary and grievance issues

What else can the contract contain?

The contract can contain any other issues that the parties agree and view as being right to include in the contract. The employer may wish to include a policy on equal opportunities, what it views as gross misconduct or indeed policies designed to protect the company upon termination such as restrictive covenants. These can prevent staff being solicited and customers being approached and poached by a disgruntled employee. It is also possible to prevent an employee from working within a certain geographical area.

What are the minimum implied terms of employment?

Mutual trust and confidence is key. Any employee and employer must act fairly towards one another. The parties must act in good faith and the parties cannot act unreasonably. The employee will be expected not to disclose trade secrets, take care of equipment and obey reasonable orders.   

Summary

• Whilst a contract of employment should always be in writing it can be as brief or as thorough as is required by the particular role.
• Always provide the contract within the relevant time allowed.
• Review the contract so as to comply with legislation changes. 
• Review the contract if the role changes significantly.
• Take great care when trying to vary the terms of the contract if the employee is not in agreement. 

This article is intended to provide our thoughts on contracts of employment. It is not meant to be specific advice on any particular employment matter. If in doubt always seek legal advice. We are experienced in drafting contracts of employment and can be contacted on 01582 439795.

Do we need a staff handbook?

Staff handbook are an addition to the contract of employment and provide further guidance to employees as to their rights and entitlements and, more importantly, what is expected of them.

Do all employers need to provide a staff handbook?
Firstly, there is no legal requirement to provide a staff handbook. Whether or not one is provided will very much depend upon the size of the employer and the available resources. In our view, a window cleaner who employs his friend's 16 year old son does not need to spend time on a staff handbook. His employee will be told of his basic rights in the contract of employment and can ask about anything else. The relationship between employer and employee will be relatively informal. If the employer is larger and has a number of staff then a handbook can assist both employer and employee.

What should a staff handbook contain?
A handbook can contain literally anything concerning employment. It is a supplement to the contract of employment and can contain guidance and policies. For example, the contract of employment will set out holiday entitlement. the staff handbook will explain who a request should be directed to, what notice is required and how much holiday can be taken at any one time. Staff handbooks can also contain policies in relation to training staff and issues such as discrimination and use of social media.

What are the advantages of having a staff handbook?
The advantages are that the handbook can be kept up to date with current legislation and is easier to update than a contract of employment which will need to be issued, signed and dated. It can provide guidance and certainty and remind the parties to the contract of their obligations to one another. The staff handbook will also say to an employee that their employer takes their rights and obligations to their staff seriously and thus sends a positive message. Any employment tribunal will be happier if an employer produces a staff handbook.

Is there any need for caution?
The only word of caution is that the staff handbook should spell out that it is non-contractual and is for guidance only. In this way, an employer should not be placed in a position whereby they are held liable for a failure to follow the contents of the handbook in any proceedings.

Key points

• Ensure that the handbook is prepared in accordance with present legislation and is consistent with the contents of the contract of employment.
• Make it clear that the contents of the handbook are non-contractual.
• Keep the handbook up to date with changes in employment legislation.
• Provide a copy to staff or have the handbook accessible. 
• Make staff aware of any changes to the handbook.                          

This article has been written to provide general comment upon the issue of staff handbooks. It is not meant as specific legal advice. If in doubt, advice should be sought. We are experienced in assisting employers in providing documents, policies and contracts and can be contacted on 01582 439795.

   

What does ACAS conciliation mean for employers

With effect from early April, employees and employers will be expected to address the issue of ACAS conciliation in employment tribunal claims. As of 6 May 2014, claims will not be accepted without a conciliation certificate.

What does this mean for me as an employer?
If you are contacted by ACAS it means that an employee or previous employee is considering taking you to a tribunal. If the person is still an employee then the matter can be dealt with as a grievance if this has not already taken place. There is therefore an opportunity to resolve the matter. If the employee has left then it is more an issue of whether the employer wishes to settle the matter financially without the case proceeding further.

How long does conciliation last?
Conciliation lasts for one calendar month and, can be extended by fourteen days. It pauses the three month time limit in which a person can submit a claim. However, if the parties or one party does not wish to take part then the certificate will be issued and the process ends.

Do I have to take part?
Absolutely not. The system is voluntary and neither party is obliged to take part. However, the employee cannot pursue any claim unless he has made a referral to ACAS and obtained a certificate.

Can my solicitor deal with the matter for me?
Yes this is allowed. As before, your solicitor can negotiate with ACAS on your behalf. There are certain advantages to this as a solicitor will be more experienced and will be in a better position to assess whether the claim should be settled and, if so, for how much.

What should I do if contacted by ACAS?
This very much depends upon whether you feel that you have a case and whether you have the stomach for an employment tribunal claim. Cases that are settled early one can be done so with confidentiality clauses and obviously save time and legal fees. However, some employers if they feel that they are in the right will not want to settle. The best advice is to seek legal advice at an early stage. It may be that an hour spent talking over matters with a legal adviser will give you a far better idea of the risks involved, the costs involved and the chances of defending the claims.  

What are the key issues to conciliation?

• Obtain some initial legal advice on the merits of the potential claim.
• Try to establish if the employee has managed to find alternative employment as this can substantially affect what the claim is worth.
• Listen to what the ACAS representative has to say and consider the arguments put forward by the potential claimant. 
• Put forward your own case politely but with conviction.
• Make a decision to settle or carry on. Even if you do carry on there is nothing to prevent settlement at a later date.

This article gives our thoughts on ACAS conciliation and how matters may work. It is not meant to be specific legal advice on any particular set of facts. If in doubt legal advice should be sought. We have considerable experience in dealing with employment tribunal claims and can be contacted on 01582 439795. 

Your employees are legally entitled to take time off for dependants

Your employees are legally entitled to take time off for dependants. Read on to discover how much and what you need to be aware of as their employer.

When can employees have time off for dependants?

1. When a dependant falls ill, gives birth, is injured or assaulted.
2. To make arrangements for the provision of care of a dependant who is ill or injured
3. In consequence of death of a dependant
4. Because of disruption or termination of arrangements for the care of a dependant
5. To deal with an incident which involves the employees child which occurs unexpectedly in a period during in which an educational establishment is responsible for the child.

Who are dependants?

Dependant in this case means a spouse, civil partner, child or parent of the child. It can also mean in certain circumstances a person who relies upon the employee should they fall ill.

What processes are involved?

The employee must inform the employee as soon as reasonably practicable for the reason for the absence and how long they will be absent for. The employer cannot refuse the request on the basis that there will be disruption as a result of the absence.

What are the legal rights of the employee?

If an employee is dismissed for reasons relating to taking time off under this Section then he or she will be automatically unfairly dismissed. If leave is merely refused, the employee can pursue a claim for compensation to an employment tribunal.

Does the leave have to be paid or unpaid?

Leave does not have to be paid although an employer may choose to make such leave paid. It depends upon the contract of employment or staff handbook. It also depends upon how much time is involved. After all, it would appear to be very harsh to reduce an employee's pay by half an hour if there is a good reason for them attending work late.

What's the good news? 

This area of law is very much open to interpretation. However, it is generally aimed at dealing with unexpected events. If, for example, a parent is given notice of a teachers strike that will take place in four weeks time, it is doubtful that the parent could rely upon this Section as the parent will have had the opportunity to explore alternative arrangements.

The aim of the Section is not for the parent to take off an indefinite amount of time. It is aimed at them making alternative suitable arrangements for care and then returning to work thereafter. This could for example mean taking an hour off of work to take a child to a grandparent's house.

If an employer is met with such a request they should look at the reason for the request and how long the employee will be absent for. It is important that the employee is made aware of the fact that there is an onus upon them to make alternative arrangements rather than merely staying with a child who is ill or who attends a school that is closed.

What is the Act that enables employees to take time off for dependants?

This article gives our interpretation on time off for dependants which exists under Section 57A Employment Rights Act 1996. You may need to consult in more details depending upon your specific circumstances.

As with any HR issue, this matter needs to be dealt with carefully and methodically and never in haste. If in any doubt then the employer should seek legal advice. Contact us for further advice on this issue on 01582 439795 or click here for details of our cost effective HR package that protects employers against claims and provides effective legal advice when needed.

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Do we need a social media policy

Social media is here to stay whether we like it or not. However, a lot of Companies appear to be unsure as to how to embrace social media and more importantly how to control and supervise staff using social media.

The first issue with social media is staff using their own social media sites. For example, if a person makes a comment on Twitter or Facebook, a Company needs to ensure that there is no potential bullying or inappropriate comments concerning other members of staff. Further, the Company will want to ensure that no inappropriate comments are made about the Company itself or indeed any of its customers. It is useful to advise staff that they should make it very clear that any views expressed are their own personal views and not those of the Company. However, this may only provide for limited protection.

Linked in is another issue entirely. On Linkedin there is of course the option to provide endorsements of other persons and their work. Again, the Company needs to ensure that staff are aware that they have no authority to give such recommendations etc on behalf of the Company and that any views expressed are those of the individual.

In relation to the Company's own social media pages, it is often useful to give this task to a senior member of staff who is trusted by management to post appropriate messages etc. The person also clearly needs to have a good knowledge of how social media works.

In summary there are a number of key issues that any Company needs to address in relation to social media:

• Have a clear policy on what is and what is not allowed. Consult with staff in drawing up any policy and ensure that staff are provided with the policy and that it is reviewed regularly.
• Be very clear on what is included namely own sites and Company sites and what sites are covered by the policy.
• Have a person in charge of social media who will be responsible for the Company site and monitoring the sites of individual staff.
• Be very clear about views expressed and whether the Company is or is not happy to be linked to such comments. This will also apply to recommendations.
• Make staff aware that misuse of social media is a disciplinary offence and, in extreme cases, can lead to dismissal.
• Provide staff training on the policy and how to use social media to further reinforce the message.
• In relation to the effectiveness of social media, the Company will need to set clear KPI's as to how effective its use of social media is and what it hopes to achieve.

If you wish to discuss social media policies further or need help in drafting an appropriate policy then please feel free to contact us.