Suspending staff during the disciplinary process

During disciplinary processes all employers have to consider whether or not they should suspend a person whilst the disciplinary process takes place. As with most things in employment law, if employers use a certain degree of common sense and act reasonably then they are far less likely to land in hot water.

Is suspension allowed for in the staff handbook or disciplinary procedures?
It is always a good idea for any employer to allow themselves the options of suspending an employee in their own disciplinary procedures. In this way, if suspension becomes necessary to consider, an employee is less likely to be taken by surprise and indeed can be referred to the said policy.

In what circumstances may it be necessary to suspend an employee?
Clearly, this will need to be considered on a case by case basis. However, it will not necessarily depend upon the seriousness of the incident although this will always be a consideration. The main issue will be is a suspension necessary.

If a case involves an investigation that may be hampered if the employee is still within the workplace then this is an obvious case for suspension. The same will apply if there has been an assault and the people involved all need to calm down. If there is a risk in the employee staying at work i.e. they have allegedly been stealing whilst in their role then again suspension will often be necessary.

How long should the suspension last?
The suspension should last no longer than is necessary and should be reviewed on a regular basis. It is always in the interests of all concerned that investigations are concluded as quickly as possible so that the process can move on to the next stage if necessary. It may therefore be the case that once an investigation has been carried out the employee can, in certain circumstances, be allowed back to work. It is never a good idea to suspend because dismissal is very likely as this may be seen as prejudging the issue.

What should an employer do?

• Have policy documents that allow for suspensions;
• Use the right on a case by case basis and explain in writing why suspension is appropriate;
• Explain in writing that suspension is in no way a prejudging of any issue and is not a punishment;
• Review the decision to suspend on a regular basis and, if it is to continue, explain why in writing;
• Keep the period of suspension to a minimum and do not delay investigations;
• Keep in touch with the employee i.e. by sending copies of staff newsletters or memos etc so that they still feel involved as an employee rather than having been cut adrift from their workplace;  
• Above all be reasonable, consistent in your approach and prepared to justify your decision.

We hope that you have enjoyed this blog. This is the thoughts of the author and should not be relied upon for any particular employment issue. If in doubt then always seek legal advice. If you would like to leave a comment then feel free to do so.

For more information on employment and HR issues please contact us at info@chilternsolicitors.co.uk or visit our webiste at www.chilternsolicitors.co.uk

Jeremy Clarkson - dismissed for gross misconduct or not as the case may be

We have all read about Jeremy Clarkson and his apparent 'dismissal' by the BBC for the unfortunate incident with a fellow employee. What however remains unclear is whether JC was actually formally dismissed by the BBC and, if so, for what reason.

The quote from Lord Hall to the waiting press was that the contract of JC would not be renewed. It would appear that JC and his two co-presenters all have fixed term contracts that end at some point this year. The contract of JC appears to be due to end within the next few days in any event.

The non-renewal of a fixed term contract is still technically a dismissal but it is a very different situation from a dismissal without notice for gross misconduct. If JC was not dismissed for gross misconduct and it is simply a case that the BBC will allow his contract to come to an end in the next few days then this may have serious implications for the BBC. If another person faces similar allegations in future and is dismissed for gross misconduct then that employee may have a potential claim for unfair dismissal on the basis that their case has  been dealt with in a manner inconsistent with other decisions. This can potentially be a way in which any employee can successfully win a claim for damages for unfair dismissal.  

Whether or not we ever learn the whole truth behind this 'dismissal' may become apparent in the forthcoming weeks. What is also clear is that no employer can allow any employee to continue to work for them once such an incident has taken place. Bearing in mind that the BBC is funded by all of us we perhaps deserve to know whether this is a case of summary dismissal or a fixed term contract being allowed to conclude.

The main thing that smaller companies can take from this event is that you need to be consistent in your approach when disciplining staff. It can never be a case of one rule for one and one rule for another. If you do adopt an inconsistent approach then you can expect little sympathy at a Tribunal hearing. What the BBC can learn from this is that they really need to be a little clearer on what happened and whether there has been a dismissal without notice or alternatively will JC continue to be paid under his present contract until it expires. This does involve taxpayers money after all.

If you have any comments to make upon this blog then please feel free to leave them. To discuss any employment or HR matters please contact us at info@chilternsolicitors.co.uk or visit our website at www.chilternsolicitors.co.uk.

Amending a contract of employment

Amending a contract of employment has always proved to be a very difficult area for both employers and employee alike. Many employers simply do not know where to start when seeking a variation of terms and, similarly, many employees are unaware of their rights.

The legal position

A contract of employment is no different to any other type of contract. It cannot be varied unless both parties expressly agree to the variation or impliedly agree. It is this second area that often causes difficulties.

What should an employer do?

If an employer needs to vary the terms and conditions of employment of employees then they should sit down and discuss the matter with the employees. They should explain the reason behind the variation to the employees and try to seek some form of agreement to the variation. If a variation is agreed then this should be so recorded in writing and the contract of employment and/or the staff handbook should be amended to reflect the change. If the employer issues new contracts of employment then these should be signed by the parties and a record should be kept to ensure that all employee have signed and returned their new contracts.

What is agreement cannot be reached?

If agreement cannot be reached then the employer needs to make a decision as to whether to proceed with the proposed amendments or not. If they decide to proceed then they can give notice to terminate the old contract of employment and offer to re-employ  the employee on the new terms and conditions. This is not without its risks because the employee can dig their heels in and can even take the employer to a tribunal.

If the employee decides to remain with the employer then the employer needs to make the employee aware that it is a condition of them remaining with the employer that the employee accepts the new terms and conditions. The employee can make it clear that they do not however accept the terms. In this case, clearly things cannot continue indefinitely. One side will have to bring the contract of employment to an end or accept that the variation to the contractual terms will remain in place.

What are the risks for employers?

If the variation has an immediate impact upon the employee such as a change of hours or a reduction in pay then things will be more straightforward. The employee will have to quickly decide whether or not to accept the new conditions. He will be paid less or have to work different hours immediately and will have little if any control over this. Therefore, he will either have to accept the change or work under protest. However, if the employee continues to work under the new terms and conditions, he will, after a certain period of time, be deemed to have accepted these new terms. This is agreement by implication as the employee has worked subject to the new terms and conditions and will therefore be deemed to have accepted the terms.

What if the change to the terms and conditions has no immediate effect?

If the change to the terms and conditions has no immediate effect then the position is slightly more complicated. For example, if an employer wishes to change a redundancy process that is part of the terms and conditions or wants to add a restrictive covenant then there is no immediate effect upon the employee.

In the case of Selectron Scotland Limited v Roper it was decided that, if there was no immediate impact upon the employee, as a result of the change, then the employee may not have accepted the contractual change.

However, in the case of Wass v Science Museum Group, an employee was deemed to have accepted a change to her terms and conditions by implication when she continued to work under the new terms and conditions for a number of years despite the fact that she had not accepted the change at the time that it was made.

Summary for employers

• When considering changes to terms and conditions consult with staff, explain the reasons for the changes and try to seek agreement.
• Record any changes made in writing and update employee documentation and records.
• If agreement cannot be reached make it clear to employees that their continuing employment is conditional upon them accepting the said changes.
• Always act reasonably as an employer. The first thing that most tribunals will look at in any case is how reasonable was the employer.

This blog represent the view of the author and should not be taken as specific legal advice in relation to any employment situation. If in doubt always seek legal advice.

We offer a wide range of employment services to companies including a specific HR system for all sizes of companies. For more information see our website www.chilternsolicitors.co.uk or email us at info@chilternsolicitors.co.uk. Please feel free to call us on 01582 439795.

We hope you have enjoyed this blog. Please feel free to leave any comments. Please take a look at our other blogs and follow us on twitter @chilternsols for regular updates for employers on key staffing issues.  

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.



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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.