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TPP Not for Profit Charity HR Seminar Oct 13


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Free HR Breakfast Seminar - Employment Law Update
Featuring Julie Fewtrell, HR Consultant

Published in: Business, Career
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TPP Not for Profit Charity HR Seminar Oct 13

  1. 1. HR Breakfast Seminar Employment Law Update Julie Fewtrell, HR Consultant Thursday 3 October 2013
  2. 2. Topics Overhaul of the tribunal system Parental leave Adoption leave Flexible working Flexible Parental Leave
  3. 3. Social media Auto enrolment Discrimination law overview and reasonable adjustments Interns Common HR topics
  4. 4. Overhaul of the tribunal system 29 July 2013: Introduction of tribunal fees New calculation for compensatory award Settlement agreements Confidential discussions about agreed termination of employment
  5. 5. April 2014:  Claimants need to notify ACAS first before lodging tribunal claims.  Conciliation is offered.  If conciliation is unsuccessful within the set period, can proceed to tribunal.
  6. 6. Tribunal fees 1. £160 issue fee, £230 hearing fee: more straightforward claims, including unlawful deductions from wages and holiday pay 2. £230 issue fee, £950 hearing fee: more complex claims, including unfair dismissal, discrimination, whistleblowing
  7. 7. • Tribunal will have power to order unsuccessful party to reimburse fee to successful party • Claimants whose earnings fall below a certain threshold will pay reduced fees or nothing at all. They need to apply for fee remission.
  8. 8. New calculation for compensatory award • Capped at the lower of weekly pay x 52 or £74,200 • Includes compensation for unfair dismissal • Potentially significant for lower paid workers
  9. 9. Settlement agreements The new name for “compromise agreements”. Final ACAS code states: Offer no longer needs to be in writing (but final agreement must, to be legally binding) Adds requirement that employee must have minimum 10 days to consider offer
  10. 10. Adds that employees should be allowed to be accompanied at settlement meetings (TU rep or work colleague). Not a legal requirement but good practice.
  11. 11. Confidential discussions about agreed termination of employment Law changed to allow employers to discuss with employees the possibility of an agreed termination. Risk of such discussions being used against them in any later ET is removed. However, care to be taken due to strict parameters attached to discussion. ACAS Code of Practice to guide employers and employees.
  12. 12. Applies to ordinary unfair dismissal only. Evidence of such discussions still admissible if: - breach of contract - detrimental treatment due to whistleblowing - unlawful discrimination - victimisation - automatic unfair dismissal
  13. 13. Can still be used in ordinary unfair dismissal if tribunal considers anything said or done was ‘improper’ or was ‘connected with improper behaviour’. Case law will test concept of ‘improper behaviour’. Until then ACAS gives broad examples of what this might cover:
  14. 14. - Victimisation - Threats or physical assault - Other criminal behaviour (e.g. fraud, perjury, blackmail) - Harassment, bullying and intimidation - Undue pressure e.g. unreasonable time-frame to respond
  15. 15. Parental Leave Increased from 13 weeks to 18 weeks during first five years of child’s life (or up to age 18 if disabled child). 8 March 2013 From 2015, 18 weeks available up to the child’s 18th birthday. Remains unpaid, with same rules around how many weeks can be taken per year, notice to be given etc.
  16. 16. Adoption Leave From 2015, surrogate parents will be eligible for this. Both will be able to attend two antenatal appointments, unpaid time off
  17. 17. Flexible Working Right to request to be extended to all employees – Children and Families Bill Implementation: spring 2014 Current procedure to be replaced by a duty on employers to deal with requests in a reasonable manner and within a reasonable period of time Right to refuse requests on business grounds remains
  18. 18. Flexible Parental Leave Timing: further consultation on administrative and implementation arrangements took place in first half of 2013, with reforms implemented by 2015 Where both parents are working, and meet qualifying conditions, they can opt into Flexible Parental Leave (FPL) and share up to 50 weeks leave and 37 weeks pay
  19. 19. FPL available to biological father or mother’s partner, including same sex partners Women will only have to take minimum of two weeks maternity leave (or 4 weeks if factory workers) FPL only starts when mother decides to end her maternity leave Both parents can then be on leave at the same time or take leave consecutively
  20. 20. Parents will also be able to intersperse periods of work with periods of leave FPL must be taken in minimum blocks of one week Employers not obliged to agree employees’ proposed FPL pattern. If agreement can’t be reached, default position will be that paid leave will be taken in one block on start date chosen by employee
  21. 21. Statutory paternity leave and pay will continue as separate rights for fathers/partners and remain at 2 weeks Additional paternity leave will be abolished New right for fathers/partners to take unpaid time off work to attend 2 antenatal appointments with their partner. “Day one” right with no qualifying conditions
  22. 22. Administrative arrangements will be “light touch” – government says at “no point will the respective employers of each parent need to contact one another to discuss their employees’ leave entitlements” In addition, changes will be made to bring adoption pay and leave rights into line with those of maternity rights, i.e. leave will be a “day one” right and pay will be 90% for weeks 1-6 etc.
  23. 23. Social Media Problems that can arise: Too much work time on social sites Criticising employer or its products Posting material that embarrasses employer Using it to bully other employees Using it to publicise things they disagree with employer about, or spread dissent Breaching confidentiality/giving trade secrets
  24. 24. Employer discovering misconduct as a result of a posting, e.g. photos on holidays when meant to be off sick Ownership of contacts, content and Twitter tags when employees leave – when used for work purposes
  25. 25. What can you do? Social Media or Acceptable Use Policy is a must This assists with any challenges at tribunal – employer is clear about what is appropriate and acceptable Communicate policy to whole workforce Brief staff to help them understand implications of their actions Enforce it consistently
  26. 26. Case: Taylor v Somerfield • Breach of implied term of trust and confidence • Employee was dismissed after posting video clip on YouTube of colleagues fighting with plastic bags while at work • Employer sought to argue the material brought the business into disrepute
  27. 27. • Tribunal disagreed, finding there was no clear association with the employer • Video only viewed 8 times • Scale of distribution is a relevant factor
  28. 28. Case – Preece v JD Wetherspoons plc. • While on duty, a pub manager posted inappropriate comments on her Facebook page about two customers • Breach of employer’s email and internet policy • Dismissed – gross misconduct • Claimed unfair dismissal
  29. 29. • Believed comments only visible to a closed group of friends and therefore private. In fact, visible to all Facebook friends. • Tribunal found the dismissal to be fair • Connection between claimant/employer was clear from Facebook page
  30. 30. • Clear from posts that claimant and her friends were discussing work and specific customers of respondent • Employer’s position strengthened by thorough nature of its policies
  31. 31. Case – Gosden v Lifeline Project Ltd • Drugs welfare worker expressed racist and sexist views in a private email sent from his home computer to the home of a friend’s private email account • His employer became aware of the email and dismissed him • Employment tribunal found dismissal to be fair
  32. 32. • Clear that ET decision was particular to this case and not to be considered binding on other tribunals • Gosden had close connection to individuals with the characteristics disparaged in the email
  33. 33. Case – Flexman v BG Group PLC • HR Executive uploaded his CV to LinkedIn which contained confidential information • Employer instructed him to remove confidential information and then commenced disciplinary proceedings • Flexman complained there was unreasonable delay in process and raised grievance
  34. 34. • Flexman resigned and brought claim of constructive dismissal • ET held he was constructively dismissed • He had resigned because he had lost faith in employer’s ability to deal fairly with disciplinary and grievance • Case did not provide any guidance on what information employees are entitled to include on their LinkedIn account
  35. 35. Case – Benning v British Airways Plc. • Employee was accused of offensive comments and footage on YouTube • During disciplinary investigation, employee claimed it was in fact his brother who had posted the material and produced a letter to that effect • Employee was dismissed and claimed unfair dismissal
  36. 36. • Tribunal found that on the evidence, it would have been difficult for the employer to conclude that the employee was not responsible for the posts • It was considered relevant that employee did not give that explanation when first questioned about the conduct
  37. 37. Points to consider when deciding what action is appropriate Nature of the offence Nature and status of work carried out by employee Extent to which role requires trust to be placed in employee Actual/potential readership Starting point likely to be that material on internet is in public domain unless employee can show it is genuinely private in nature
  38. 38. Case – Whitmar Publications v Gamage Case involved ownership of LinkedIn contacts. Outcomes: • Where employers require employees to maintain LinkedIn pages on their behalf during employment, courts are likely to find contacts belong to employer. • Injunctions may be granted where former employees try to misuse such contacts post- termination.
  39. 39. • Unfortunately, this case does not answer what happens to employees’ personal LinkedIn accounts where they are not required by the employer to maintain one but the accounts connect to their employer’s contacts. • For some protection, employers can use post-termination restrictions in contract of employment and robust social media policies.
  40. 40. “Bring-Your-Own-Device” BYOD Issues related to safeguarding personal and company data, as more staff work on their own smart phones and tablets: Control: employer does not own device Security risks DPA compliance IT licences may not allow for use on such devices
  41. 41. Support and maintenance Information Commissioner has issued guidance on BYOD issues
  42. 42. How to minimise risks Clarify rules, including consequences of non- compliance If employer reimburses costs, be clear about who owns device and its contents, who is responsible for what costs Remind staff about confidentiality Explain security risks and safeguarding If possible, prohibit downloading of data to device
  43. 43. Explain how, when and why monitoring will take place Have procedure for reporting loss or theft of a device Require employees to hand over device and any password for inspection on request and on termination of employment, so employer can wipe it of any company information. Employee should give explicit consent for this.
  44. 44. Auto-enrolment From the Regulator – key lessons learnt: Start planning early (volume “spikes”) Know your staging date Choose and agree scheme provider early Choose and agree software supplier early Test processes and software Communication
  45. 45. Take care: Staging date linked to number of PAYE staff as of April 2012 – check your date Will your payroll supplier provide any help on who is eligible month-by-month? If you do not have a pension provider now, expect pressure on providers during 2014 Regulator can help but volume of work expected to be very heavy in 2014
  46. 46. Planning Ahead Regulator website has great tool for this: Lists out the steps you need to work through Each step takes you to more detailed information if you need it Provides guidance on timeline for each step
  47. 47. Steps • Know your staging date • Nominate a contact • Develop a plan • Check processes and software • Assess your workforce • Review pension arrangements • Communicate to workers
  48. 48. • Enrol eligible jobholders • Registration • Keep records • Ongoing responsibilities
  49. 49. Practicalities: Provide Regulator with a nominated contact at your organisation now so that they can email this person with key, relevant information, for your organisation Regulator writes to organisations 18 months before their staging date – subsequently writes 12, 6 and 1 month before, informing you of what you should have done by these deadlines
  50. 50. Important decision Which definition of pay will you use? “Qualifying earnings” basis is likely to be lowest cost option but may be more onerous to administer This involves three tiers of workers and jobholders, with different rights Limits pensionable pay to that between £5,668 and £41,450, rather than from zero and up to full pay amount
  51. 51. Regulator “news” Concerns about volume of employers reaching staging date in March-May 2014 Recent DWP consultation on simplification of auto enrolment Has led to some changes which will be helpful to employers Ironing out a few wrinkles Regulator has issued simplified rules (end September)
  52. 52. Discrimination law overview Many provisions of Enterprise and Regulatory Reform Act which directly impact on Equality Act are not yet in force. Likely that many, e.g. relating to compulsory equal pay audits and caste discrimination, will take some time, even years, to come into law. Repeal of third party harassment process, 1 October 2013
  53. 53. Adjustments to absence policy for disabled employee EAT: HMRC v Whiteley Asthma sufferer. Conclusions: Not all disability related absence must always be disregarded for purposes of applying sickness policy. Employer may be able to take action where absences are in excess of what might be considered average for someone with the same disability.
  54. 54. This case highlights how crucial it will always be to get thorough, expert medical advice.
  55. 55. Reasonable adjustments and alternative employment For clarity: Equality Act 2010 places a duty on the employer to make reasonable adjustments in relation to a disabled person where: - a provision, criteria or practice applied by employer, or - a physical feature of employer’s premises, or - a failure to provide an auxiliary aid......
  56. 56. ....puts a disabled person at a substantial disadvantage in comparison with persons not disabled. An example given in the EHRC’s Code of Practice is transferring a disabled person to fill an existing vacancy. Issues around whether or not requiring the person to undertake a competitive interview process is fair in these circumstances or not.
  57. 57. Cases: Archibald v Fife Council Wade v Sheffield Hallam Uni Conclusions of EAT: Not always reasonable adjustment to place a disabled person into a vacant position. Depends on circumstances of each case.
  58. 58. Where there are good reasons for the employer to believe the employee does not have or may not have essential skills for alternative role, legitimate for employer to test this through appropriate process such as competitive interview.
  59. 59. But... if employee satisfies essential criteria of vacant position, failure to appoint them (even if there are ‘better’ candidates) likely to amount to failure of duty to make reasonable adjustments.
  60. 60. Interns Case – Keri Hudson v TPG Web Publishing • Employer overstepped the mark. Should have been paying NMW at the very least. • If payment made, this helps to ensure certainty. If unpaid, ensure:
  61. 61. Intern has little or no obligations towards business, i.e. can come and go as they please Organisation not reliant on work of intern Arrangement is for finite (and short) period There is no indication of future employment
  62. 62. Most widely-raised HR topics Managing long term sickness absence Disability questions within the recruitment process Mental health issues Poor performance being left for too long Restructuring due to economic climate/requirement to be more “commercial”
  63. 63. Employment Tribunal Statistics 2012/2013 figures • 3% increase in number of ET claims from 186,331 in 11/12 to 191,541 in 12/13. • Figure expected to decrease in next year, with introduction of tribunal fees. • Working Time Regulations claims: 30% of total claims in 2012/13. • Unfair dismissal accounted for 15% of all claims in 2012/13 (increase of almost 6% on previous year).
  64. 64. • Sex discrimination claims rose by 74%, despite overall fall in such claims of 30% since 07/08. • Claims for disability/race/age discrimination, equal pay, and detrimental treatment/unfair dismissal connected with pregnancy – fell. • Claims relating to Part Time Workers Regulations, religion or belief and sexual orientation discrimination - rose
  65. 65. • Number of cases received by EAT rose by just under 6%.
  66. 66. ?
  67. 67. Contact details Julie Fewtrell HR Consultant 020 7935 7855 07977 505995
  68. 68. Providing: • Employee relations advice • Training on HR matters: e.g. Performance Management, Appraisal and Supervision, Recruitment and Selection, Using HR Policies
  69. 69. • 1-to-1 coaching and team days – using Myers Briggs where appropriate • Facilitation of staff and trustee away days • Governance advice: developing board appraisal, facilitating strategy days