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Pavo Employment Law Update
- 1. www.hillyermckeown.co.uk PAVO Employment Seminar 10 July 2014 Justine Watkinson and Rachel Hughes Hillyer McKeown Solicitors
- 2. www.hillyermckeown.co.uk Our Employment Law Speakers Rachel is a Solicitor in our experienced Employment Law Team. She has extensive experience in advising and acting for a diverse range of companies on Tribunal claims, general HR issues such as disciplinaries, grievances, discrimination as well as redundancy (collective and individual), TUPE issues and industrial relations. Justine is Justine is Head of the Employment Law Team. She has extensive expertise in all areas of employment law, including executive appointments and terminations, drafting of contracts of employment and handbooks, all aspects of business change projects, long term sickness, performance and capability, and discrimination issues.
- 3. www.hillyermckeown.co.uk Today’s Topics • Effective management of Sickness Absence • Managing disciplinaries • Zero hours contracts v fixed term – what’s all the fuss? • Brief rights of volunteer workers • Employment Law Update – recent changes to flexible working • Q&A session
- 5. www.hillyermckeown.co.uk Managing Sickness Absence Manage the absent employees • Third sector offer generous sick pay • Often leads to long term or persistent sickness absence • Encourage/help employees back to work • Sickness absence is not an alternative to annual leave
- 6. www.hillyermckeown.co.uk Managing Sickness Absence What can you do? • Assess your sickness absence policy • Keep in touch • Welfare Meetings • Obtain medical reports • Assess when the employee can return to work • Return to Work Interviews
- 7. www.hillyermckeown.co.uk Managing Sickness Absence Keeping In Touch • Regular telephone calls • Welfare Meetings • Return to Work Interview • Keep a record of all conversations/meetings
- 8. www.hillyermckeown.co.uk Managing Sickness Absence Obtaining a medical report • Letter of instruction – get it right! • Set out history • Job description • Specific questions
- 9. www.hillyermckeown.co.uk Managing Sickness Absence Persistent Short term absence • Sickness Absence Trigger Policy • Disability related absence
- 10. www.hillyermckeown.co.uk Managing Sickness Absence Summary • Know where your employees are • Discipline absence where necessary • Get employees back to work
- 12. www.hillyermckeown.co.uk Managing Disciplinaries • Follow ACAS Procedure and/or internal disciplinary procedure • Essential to properly carry out the procedure • Deal with any complications • Seek HR advice where needed
- 13. www.hillyermckeown.co.uk Top Tips to Managing Disciplinaries • Don’t be hasty to suspend an employee • A thorough investigation is key • Anonymised witness statements
- 14. www.hillyermckeown.co.uk Top Tips to Managing Disciplinaries • Provide the employee with all the evidence • Sickness absence part way through a disciplinary • Keep the employee informed • Keep a paper trail
- 16. www.hillyermckeown.co.uk Zero Hours Contracts • Entered the UK in 1974 to provide employers with flexibility • Not employees but ‘workers’ • Entitled to paid salary and annual leave • Increased use in recent times due to the recession • No guaranteed hours
- 17. www.hillyermckeown.co.uk Zero Hours Contracts Why are they receiving such negative press and government attention? • No obligation to provide workers with minimum set hours • Exclusivity Clauses • Causes uncertainty for workers and no guaranteed wage
- 18. www.hillyermckeown.co.uk Zero Hours Contracts Why are they receiving such negative press and government attention? • Used to avoid employer responsibility e.g. no flexible working rights, maternity rights, etc • Calls the employment figures into question
- 19. www.hillyermckeown.co.uk Zero Hours Contracts Why use zero hours contracts? • Easy access to pool of workers • Flexibility over workforce • Avoid fixed overheads • If not enough work then no requirement for employer to provide
- 20. www.hillyermckeown.co.uk Zero Hours Contracts Why use zero hours contracts? • Cost effective • Effective where there is uncertainty of work
- 21. www.hillyermckeown.co.uk Zero Hours Contracts • Used by McDonalds, Boots, Weatherspoons, Subway, Sports Direct • The NHS has 100,000 workers on zero hours contracts • MPs employ 151 staff on zero hours
- 22. www.hillyermckeown.co.uk Zero Hours Contracts Case Study - McDonalds • McDonalds admitted that 90% of their staff are on zero hours contracts • Almost 83,000 workers with no guaranteed work
- 23. www.hillyermckeown.co.uk Zero Hours Contracts Case Study - McDonalds Justification by McDonalds: • All have access to benefits e.g. life assurance, employee discounts, training
- 24. www.hillyermckeown.co.uk Zero Hours Contracts Case Study - McDonalds BUT: • All workers subject to an ‘Exclusivity Clause’ • McDonalds say most workers do work 20/30 hours per week so no need to work else where • Argument this creates ‘mutuality of obligation’
- 25. www.hillyermckeown.co.uk Zero Hours Contracts Potential changes • Labour government want to regulate zero hours contracts • Worker to be automatically entitled to fixed hours once they have worked regular hours for a 6 month period;
- 27. www.hillyermckeown.co.uk Fixed Term Contracts What are they? • Often referred to as temporary contracts • Provide employment for fixed period of time or fixed task/project • After 4 years of continual renewals become permanent employees
- 28. www.hillyermckeown.co.uk Fixed Term Contracts Examples of fixed terms where a contract: • Ends on a fixed date • Covers sickness or maternity leave • Linked to specific funding stream • Completion of a project • Short term seasonal contract
- 29. www.hillyermckeown.co.uk Fixed Term Contracts How can you end a fixed term contract early? • Can insert a ‘break clause’ • Provide for early termination with notice
- 30. www.hillyermckeown.co.uk Fixed Term Contracts Why use a fixed term contract? • Creates certainty • Use for a specific period or task • Guaranteed hours and pay for the employee • Not long term oppose to zero hours
- 32. www.hillyermckeown.co.uk Volunteer Rights • About 800,000 volunteers in the voluntary sector • Not subject to standard policies e.g. Disciplinary, Whistle blowing, Maternity • Job role rather than job description •No employment rights
- 33. www.hillyermckeown.co.uk Volunteer Rights • Subject to Equality Opportunities Policy, Diversity, Organisational own requirements • Volunteers have successfully argued they were employees e.g. Payment • Mutuality of obligation – is there an obligation on the volunteer to provide work? •
- 34. www.hillyermckeown.co.uk Changes to Flexible Working
- 35. www.hillyermckeown.co.uk Flexible Working • Commencing on 30th June 2014 • Apply to all employees with 26 weeks’ service
- 36. www.hillyermckeown.co.uk Flexible Working • Duty on employers to consider all requests in a reasonable manner • The same 8 business reasons for refusing a flexible working request will apply
- 37. www.hillyermckeown.co.uk Flexible Working Benefits of Flexible Working • Workers on flexible contracts tend to be more emotionally engaged • More satisfied with their work • Improve productivity • Less likely to quit Study by Kingston University
- 38. www.hillyermckeown.co.uk Aventi • Fixed fee HR and employment law support • Insurance protection against Tribunal claims • Discounted offer for all DVSC members
- 39. www.hillyermckeown.co.uk Thank you Any questions? Find out more at www.hillyermckeown.co.uk
Editor's Notes
- Welcome – Seminar Title Introduction to Rachel and Justine Housekeeping Choice – Showcase Running order – Seminar
- LT sick policy – so often in the third sector employees have access to a very generous employer sick pay; often from 6-12 months; does not mean that employee entitled to remain off sick and not be managed/monitored by you; may be subject to abuse/seen as holiday; understand there are genuine cases of LT sick leave and they can be managed on an individual basis; where have recurring sick leave – needs to be managed as it is a cost to the organisation Train your managers on the policy and steps to take to manage absence
- LT sick policy – so often in the third sector employees have access to a very generous employer sick pay; often from 6-12 months; does not mean that employee entitled to remain off sick and not be managed/monitored by you; may be subject to abuse/seen as holiday; understand there are genuine cases of LT sick leave and they can be managed on an individual basis; where have recurring sick leave – needs to be managed as it is a cost to the organisation Train your managers on the policy and steps to take to manage absence
- When was the last time you reviewed your LTS policy? If its not contractual (subject to sick pay) can amend and review Often What are the reporting procedures? Meetings – for LTS introduce a welfare meeting after 4 weeks/can be at the employee’s home; some organisations hold the meeting after 2 weeks Assess when the employee can return to work e.g. client who had an employee off for 7 years and another for one year; poor management; should be keeping on top of employees; expensive to keep someone off for so long; appreciate not the private sector and there is some discretion but if someone cant say when they can return and neither can a medical practioner need to look at options e.g. dismissal
- If employee been off for 4 or more weeks consider whether they have given a time scale of when they can return or not; if they are costing you money then you need to act; if they are suffering from stress at work then you need to look at managing their job role, getting a medical report and getting them back to work asap; often stress cases ended up resulting in periods of long term indefinite periods of time off work Letter of instruction – important to get this right. GP report v occupational health report; GP report can be employee friendly ; you need the advise to make a decision so need a robust report The Dr will only respond to what you are asking and you can only react to the advise you are given Disability related absence – if an individual off with a disability related absence then we need to understand that illness, what adjustments can be made to their job role JD – important to spell out to the Dr what the employee’s job entails; if you don’t put it in the letter the GP wont know (case study – head of HR and back problem; informed them of the high volume/quick turn around/stressful situation the job causes – the occ health practicioner concluded the employee was unable to do his job so he ultimately left the business; We have templates
- If employee been off for 4 or more weeks consider whether they have given a time scale of when they can return or not; if they are costing you money then you need to act; if they are suffering from stress at work then you need to look at managing their job role, getting a medical report and getting them back to work asap; often stress cases ended up resulting in periods of long term indefinite periods of time off work Letter of instruction – important to get this right. GP report v occupational health report; GP report can be employee friendly ; you need the advise to make a decision so need a robust report The Dr will only respond to what you are asking and you can only react to the advise you are given Disability related absence – if an individual off with a disability related absence then we need to understand that illness, what adjustments can be made to their job role JD – important to spell out to the Dr what the employee’s job entails; if you don’t put it in the letter the GP wont know (case study – head of HR and back problem; informed them of the high volume/quick turn around/stressful situation the job causes – the occ health practicioner concluded the employee was unable to do his job so he ultimately left the business; We have templates
- Trigger policy Disability related absence – recent case; need a medical report to state what is the average absence someone with the type of disability the employee is suffering from would ordinarily take in one year; don’t take into account that absence but can take into account anything over that Client – employee suffered from diabetes – said all absence related to diabetes but it didn’t as some was due to colds, flu, sick bug; If necessary pay out for a medical report – more cost effective in the long run
- we don’t intend to go through the ACAS code of practice; included a flow chart of the basic procedure to be followed Going to go through some of the key pit falls of dealing with a disciplinary which we find frequently occur with our clients The procedures generally apply to employees with more than 2 years’ service Employees with less than 2 years’ service can deal differently; seek advice as and when that situation arises
- we don’t intend to go through the ACAS code of practice; included a flow chart of the basic procedure to be followed Going to go through some of the key pit falls of dealing with a disciplinary which we find frequently occur with our clients The procedures generally apply to employees with more than 2 years’ service Employees with less than 2 years’ service can deal differently; seek advice as and when that situation arises
- Investigation – often forgotten; key to a fair warning/dismissal is the employer has carried out as much investigation as is reasonably possible; investigate the allegations by speaking to witnesses; speak to the employee; no need to give the employee notice of the meeting and they do not have a right to be represented; any unanswered questions should be answered at the investigation stage e.g. Check emails, cctv, financial records if allegation of fraud etc. Suspension – when deciding look at whether there is an imminent risk to the business; unfair suspension can be a fundamental breach of contract
- Disciplinary hearing and submitting a fit note – steps to manage; often employees think this will delay proceedings; fit note may say cant do their job but doesn’t usually say they cant attend meetings; put pressure on the employee to attend; say the meeting will be held in their absent if they do not attend (although take advice before making any decision in the absence of an employee); suggest holding the meeting at their home, a mutually convenient place, allow them to be represented by a family member or friend; tell them they can send written representations in their absence Keep the employee informed of any delays – if policy says will reply within 5 days but still need to do more investigation, don’t rush the outcome – send a holding letter - Keep a paper trail
- In a time when the government trying to increase economy and get people in work and off benefits
- affects ability to rent a house, get a mortgage, lease a car, obtain a credit card etc Some employees are working 30 hours per week but no guarantee of work Calls the employment figures into question – some employees may only have 5 hours work a week or non at all but still classed as ‘employed’ according to statistics
- If not enough work then don’t have to provide it, - unlike fixed term or permanent contract which can lead to redundancies and increased costs
- The NHS has 100,000 on zero hours contracts – perhaps one of the reasons why the government is reluctant to illegalise such contracts Interestingly. MPs have 151 staff on zero hours in spite of their crticism including the Labour party who appear to be their biggest critic
- Exclusivity clause – not permitted to work else where so cant even work when not required to for McDonalds; argument that there is mutuality of obligation which should mean the workers are employees and therefore should be given guaranteed hours McDonalds say most employees do work 20/30 hours per week so no need to work else where
- Exclusivity clause – not permitted to work else where so cant even work when not required to for McDonalds; argument that there is mutuality of obligation which should mean the workers are employees and therefore should be given guaranteed hours McDonalds say most employees do work 20/30 hours per week so no need to work else where Mutuality of obligation – a key ingredient to being an employee and not just a worker
- compare to what the government did with fixed term contracts; after 4 years of renewal become a permanent employee
- Contract that ends of a fixed date Contract covering permanent employee’s sickness or maternity/paternity leave Contract linked to specific funding stream – contract terminate at the end of funding term Contract that expires on the completion of a particular project Short term seasonal contract
- Break clause is notice clause which entitles the contract to be brought to an end earlier than the end of the fixed term Unless there is a break clause the employee is entitled to all pay and benefits under the contract had the contract continued untilthe end of the fixed term
- Offer – if they sign up within the next 2 months as a result of this seminar agree 20% reduction or £1000 plus VAT for those with less than 10 employees and £1250 plus VAT for those with 10-15? £1500 for 15-20 employees?