Employment Law

Introduction

Unfortunately the country has got a reputation for being “Sick Note Great Britain” as on average a worker in this country has 9.1 days of absence per year due to sickness.  This does not compare too favourably with our United States counter parts who only have 4.9 days of sickness absence per year, and our friends in Western Europe who average 7.3 days of sickness per year.

Accountants reckon this problem costs our economy around £29 billion per annum.  As a result the government have felt the need to try and assist some/medium sized businesses by providing the “Fit for Work” Scheme.  Primarily the Scheme is designed to assist small/medium sized businesses who do not have their own HR/occupational health department and cannot afford to do so.  It is hoped that the Scheme will help such businesses reduce absence due to sickness by getting employees back to work.

What does the Scheme cover

There are three benefits/elements to the Scheme.

Firstly there is free access to a website and telephone advice line for advice on any work related health matters.  The website is www.fitforwork.org and the telephone number is 0800 0326235.

The second element is a free referral to an occupational health assessment for employees/workers who have reached or a GP expects them to reach 4 weeks of continuous sickness absence.

Currently the referral can only be made by a GP, but in the very near future (at a date yet to be confirmed) an employer will be able to make the referral.

Following the referral this will lead to a “Return to Work Plan” designed to get the employee back to work, which may include suggestions that the employer makes reasonable adjustments to the workplace and/or the employee undertakes rehabilitation such as counselling, physiotherapy etc.

The third and final part of the Scheme is that the government have introduced a tax exemption of up to £500 per annum per employee for medical treatment if it is recommended as part of a “Return to Work Plan”.

Is the Scheme compulsory?

The Scheme is not compulsory and can only work if both the employer and the employee/worker consent to the process.

Furthermore neither party is duty bound to follow the recommendations in the “Return to Work Plan”.

Having said that, Daven Naghen, head of our Employment Team, commented as follows:-

“From an employer’s prospective the Scheme is most useful as it provides free help and assistance in dealing with sickness absence.  However if an employer does go down the route of using the Scheme and getting a “Return to Work Plan” for his employee, then there may be dangers in not following the plan.  For example if subsequently the employee is dismissed for a reason relating to sickness/absence then the employee might argue that the employer has been unreasonable in not following/adhering to a “Return to Work Plan”.  Similarly if there is a disability discrimination type claim, then an employee may have a stronger case for arguing that an employer is not made reasonable adjustments if say they are recommended in a “Return to Work Plan”.

However on balance I think that the Scheme is a good idea for some/medium sized businesses who cannot afford their own HR/occupational health support – it just remains to be seen how this Scheme works in practice and what quality of service is provided.”

If you are an employer or employee/worker who requires advice on this new Scheme or any issues relating to sickness absence then please contact Daven on 01775 722261 or email daven.naghen@maplessolicitors.com or contact/visit our offices at 23 New Road, Spalding, Lincolnshire, PE11 1DH.

Following the re-election of the Conservative Government in May 2015, the Government as promised brought in new legislation relating to zero hours contracts.

Section 153 of the Small Business, Enterprise and Employment Act 2015, with effect from the 26th May 2015, banned provisions in zero hours contracts which prohibit workers from working for other employers (or prohibit them from doing so without the employer’s consent).  Such “exclusivity clauses” are now unenforceable.

This Act also enables the Secretary of State to make regulations in relation to exclusivity restrictions on zero hours workers including:-

• Modifying zero hours contracts.
• Imposing financial penalties on employers.
• Requiring employers to pay compensation to zero hours workers.
• Conferring jurisdiction on employment tribunals.
• Conferring rights on zero hours workers.

The Government has therefore reserved to itself very wide powers to make further provisions in due course.  The Government has confirmed that it “will consider carefully the evidence received from stakeholders and interested parties in determining how to exercise these powers.”

Daven Naghen, head of our employment team has commented as follows on this new law:-

“The Government has been put under pressure to address certain abuses in the zero hours contract system and this “banning” of exclusivity clauses does go some way to doing this.  However I expect the Government to be reluctant to impose any more restrictions on zero hours contracts, since they are well aware that many employers have found the flexibility of such contracts extremely useful for their businesses.  Having said that the Government has reserved certain powers to itself to make further regulations in respect of zero hours contracts and there may be scope for further restrictions on zero hours contracts in the future.  All employers who use zero hours contracts should keep an eye out for potential law changes.”

If you require any advice in respect of zero hours contracts, whether you are an employer or a worker then please do not hesitate to contact Daven on 01775 722261, or email daven.naghen@maplessolicitors.com or visit our offices or make an appointment to see us at 23 New Road Spalding Lincolnshire PE11 1DH.

Following the Landmark EAT Judgment in Bear Scotland Limited and others v Fulton and others, payments for non-guaranteed overtime must be taken into account in calculating holiday pay. The Government set up a taskforce to assess the impact this decision might have on employers. In doing so, the Government announced that it was “taking action to protect UK business from the potentially damaging impact of large backdated claims”.

On the 18th of December 2014 the Government announced the conclusions of the taskforce and implemented the Deduction from Wages (Limitation) Regulations 2014.

The Government recognised that although the EAT had limited backdated claims, as there could not be a gap of more than three months between any “series” of deductions, there was still the possibility that these claims could be brought extending as far back as 1998. This obviously represented a major potential liability for businesses whose employees undertook non-guaranteed overtime.

The new rules impose a two year limitation on all claims for backdated holiday pay claims related to non-guaranteed overtime. These new rules will take effect from the 1st of July 2015.

Obviously this is beneficial for employers as it will limit potentially large claims and will provide a level of certainty as to potential liability.

Until the 1st of July 2015 employees can still bring holiday pay claims that could potentially date back beyond the two year period if the deductions formed a series with any gaps between them being not more than three months. Hence the new rules do not protect employers currently, and will only do so from the 1st of July 2015.

If you are an employer or an employee requiring advice on a holiday pay claim then please contact Daven Naghen head of our Employment Tribunal. Dav can be contacted on 01775 722261, daven.naghen@maplessolicitors.com or by writing to or visiting our offices at 23 New Road Spalding Lincolnshire PE11 1DH.

On 4^th November 2014 the Employment Appeal Tribunal (“EAT”) gave Judgment in the joined cases of Bear Scotland Limited and Others –v- Fulton and Others; Hertel (UK) Limited – v- Woods and Others; Amec Group Limited –v- Law and Others.

The Judgment stated that all elements of a worker’s normal remuneration (including payments in respect of non-guaranteed overtime) must be taken into account when calculating holiday pay for their four weeks “EU” leave.

The holiday pay must therefore be based upon typical average pay, and not just upon basic hours’ pay (which had been the previously long established position).

All of the three cases before the EAT involved non-voluntary overtime.  Therefore it is arguable that “voluntary” overtime does not count as normal remuneration and does not come into account when calculating holiday pay.

This Judgment potentially gives a significant number of UK workers, who have only been paid holiday pay calculated on their basic hours, claims for unlawful deductions from wages.

However the Judgment has significantly limited the scope for retrospective/backdated holiday pay claims.

The failure to pay holiday pay in full can be brought as an unlawful deduction from wages claim.  A worker can bring such a claim in respect of a “series of deductions”.  In such a case, the claim must be brought within 3 months of the last deduction in the series.  It was therefore believed that this provision allowed claimants to link together a series of non/under payments in order to bring a backdated claim, regardless of the length of time that had elapsed between each deduction.

However the EAT held that if there is a gap of more than three months between any two deductions in the chain, the “series of deductions” is broken.

This part of the Judgment will severely restrict the ability of workers to pursue retrospective claims and is some comfort to employers fearing that the Judgment could lead to windfall payments for workers.

However there might still be a sting in the tail, since the EAT granted permission for the employers in all three cases to appeal this Judgment so the matter may still go to the Court of Appeal for further consideration.  This might take many months if not years to resolve!

If you are an employer who is concerned about the consequences of this Judgment then please contact Daven Naghen on 01775 722261 or email daven.naghen@maplessolicitors.com or write to Maples Solicitors LLP,  23 New Road, Spalding, Lincolnshire PE11 1DH.

A recent Employment Appeal Tribunal decision has determined that when calculating holiday pay an employer should take into account non-voluntary overtime.

As a result if you are only paid holiday pay based upon your basic hours, and no account is given for non-voluntary overtime, you may be eligible to make a claim against your employer for an unlawful deduction from wages.

Potentially there is scope to make backdated/retrospective holiday pay claims, so that you can claim a shortfall in holiday pay for holidays taken in the past.

If you believe that you therefore might be entitled to more holiday pay then please contact Daven Naghen who can advise you fully.  Please contact Daven on either 01775 722261, daven.naghen@maplessolicitors.com or at our offices at 23 New Road, Spalding, Lincolnshire PE11 1DH.

Introduction
The office Christmas party is often a great way to reward all your staff for their hard work during the preceding 12 months and to bolster staff morale. However it can be a recipe for disaster so far as employment law is concerned. Here are some matters for your consideration this festive season:-

1. Beware of possible discrimination!
Christmas despite all the retail hype is actually a Christian festival, so employers need to be aware that it might be discriminatory to force staff to attend if they wish to decline on the grounds of their own religious beliefs. It might assist if non-alcoholic drinks can be made widely available and that consideration is given to the types of food that are available.

2. Beware of Harassment!
The office party is an extension of the workplace and conduct at the workplace can have employment law consequences. If a member of staff is harassed (sexually or otherwise) by a colleague, then you as the employer could be vicariously liable for this. It might be sensible before the party to send a polite reminder to all staff to be aware of their behaviour and to politely refer them to your staff policies on bullying, harassment and discrimination.

3. Beware of absenteeism!
Quite often the party will lead to a major hangover for some. If the following day is a working day then that can inevitably lead to absences. If at all possible arrange the party for a date when absence will not be an issue, e.g. a Friday or Saturday night if the office is shut at the weekends. Alternatively politely remind staff in advance of the requirements to attend work the following day.

4. Beware of drink driving!
Unfortunately a not completely uncommon problem is the risk of staff driving home after the party after the consumption of alcohol. To try and avoid the risk of this then it might be sensible to lay on free transport and ensure that there are plenty of non-alcoholic drinks available together with food. It might also be sensible to arrange for the party to finish whilst public transport services are still available.

5. Beware of promises made!
Occasionally the alcohol flowing can lead to the employer and staff talking about matters of future pay and/or promotion and promises being made. Steer away from such conversations, leave these to the office/workplace to avoid hopes being unnecessarily raised.

6. Beware of social media! In the modern age of mobile phone and internet it is almost inevitable that a picture and/or posting will be posted on Facebook or similar social media website almost instantaneously. Such photographs and postings may lead to possible embarrassment or even adverse publicity for the employer. Staff should again be politely warned in advance of the Company’s social media policy and/or you should issue guidelines on the use of social media at the party.

Hopefully your Christmas party will be full of festive fun and you will not need to call an employment lawyer early in the New Year! If unfortunately you do need to, or need advice about your Christmas party arrangements or any other employment issue then please contact Daven Naghen on 01775
722261 or email daven.naghen@maplessolicitors.com or arrange an appointment to see Daven at our offices at 23 New Road, Spalding, Lincolnshire, PE11 1DH. We wish all our clients a very Happy Christmas and a Prosperous 2017!