5 things every manager (of people) should know

Being a manager can be both a tough and a highly rewarding job. Often the result of a promotion coming after hard work. Or a brand new role in a new organisation.  But rarely does the status of manager come with a tight brief and any training. Most managers learn the hard way about what is expected of them and for many their main source of development is how they have been managed; well or badly.

If every manager understood the following 5 things clearly their chances of being successful and effective would significantly improve which in turn would have a powerful knock on effect across the company.

What their purpose is

When we audit companies we often ask the CEO and other senior people, what the purpose of different roles are. We also ask the individual doing that role. Often the definitions don’t match. Sometimes it sounds like two different jobs to us. If you do nothing else, make sure you can articulate the purpose of the manager’s role.

Often explanations talk about production, technical expertise, sales targets, quality but rarely do they talk about responsibilities for the people being managed. It can be seen as Business as Usual – ie in addition to other expectations on the manager meaning it will be a low priority. Which will impact on the whole culture of the organisation and not in a positive way.

What they can and can’t do

This might seem obvious but it rarely is.  We are talking about whether they can hire and fire, what their budget is, whether they can arrange training and promote people. Are they free to discipline their staff or must this be culturally approved? What isn’t written on the job description or needs to be explained?

What vicarious liability is and how it might impact on them

Vicarious liability refers to a situation where someone is held responsible for the actions or omissions of another person. In a workplace context, an employer can be liable for the acts or omissions of its employees, provided it can be shown that they took place in the course of their employment.

Many employers are unaware that they can be liable for a range of actions committed by their employees in the course of their employment – these can include bullying and harassment, violent or discriminatory acts or even libel and breach of copyright. It’s also possible to take action against an employer for the behaviour of third parties, such as clients and customers, provided these parties are deemed to be under the control of the employer.

The key question of any case of vicarious liability is whether the employee was acting in a personal capacity, or in the course of their employment. This can often be difficult to determine. Nor does an employer’s liability end once the employee leaves the organisation – as the law stands, action can still be taken against an employer even though the person in question no longer works for them.

What their H&S responsibilities are

Under the law employers are responsible for health and safety management. For every employee this responsibility lies with their manager. Even if there is a H&S Advisor. It is the managers that have the responsibility on a day to day basis because it is the employer’s duty to protect the health, safety and welfare of their employees and other people who might be affected by their business.

This means making sure that workers and others are protected from anything that may cause harm, effectively controlling any risks to injury or health that could arise in the workplace which includes managing and monitoring stress. Also managing sickness absence and understanding when an employee may need to be offered reasonable adjustments if they have a special need or a disability, and it might help them remain at work.

Employers also have duties under health and safety law to assess risks in the workplace. Risk assessments should be carried out that address all risks that might cause harm in your workplace.

What the unwritten rules are

Often the unwritten rules or internal ways of working are the biggest keys to success or failure. Knowing them is a start. Often politics is a key part of this. Who to know, be connected with. Who to avoid upsetting. How the organisation deals with conflict and disagreements. How the culture dictates the ways of working for the organisation.

We get involved in situations where managers haven’t worked out and often failing to understand and comply with unwritten rules (obvious to everyone apart from the manager) is sited. Imagine being told it was all over for failing to comply with rules that no-one told them about.

Often a solution to tackling any of these issues that you recognise can be signing up to an HR audit and a bespoke management training programme. So that you know your managers are being supported but also that what they are being taught and guided on is appropriate and on brand for your company.  This can be in conjunction with senior leaders and any internal HR function.

The good news is Amelore offer this service so do get in touch if we can help and advise you further.

The truth about Tribunal Indemnity Insurance

Many busy SME owners choose outsourced HR providers based on the fact that Tribunal Indemnity Insurance is offered and so they feel they have mitigated against a potential financial risk and made a good choice.

However many don’t fully understand what this insurance is and the impact on their business of signing up to such a service. They also have little idea of what risks if any they actually have in their business of someone making a successful claim against them. This blog explains it further.

What is it Tribunal Indemnity Insurance?

Because employment law can appear complex and full of tricky loopholes, the scaremongers selling tribunal indemnity insurance often have a field day by playing on people’s fears of something that can in many circumstances be prevented.

Tribunal indemnity insurance takes various forms which range from insurance against all legal and compensation costs arising from a tribunal claim, to just simply covering legal costs or nothing at all because you didn’t follow their rules.

As with any insurance policy, the first step is to think about the risk you are insuring against. It’s an easy decision for an electrical firm with a warehouse near a river to insure against flood damage. If there’s a flood, all of the stock could be wiped out and the business could go bust. The risk is high, and so is the potential cost of the insured event.

For business owners, it’s not so easy to quantify the risk and potential costs of a tribunal claim, so they go for peace of mind, and take the insurance. The reality is that there are many steps in the journey to an employment tribunal, and an employer who has sensible HR policies and procedures in place, and follows them, is at a very low risk of losing an employment tribunal claim. Even if the employer loses the claim and has to make a compensation payment, the costs are often nowhere near as high as expected.

The claim with the highest sum awarded was in a sex discrimination claim. These are technically uncapped, and can also include awards for injury to feelings.  But the median award in 2016/17 for Sex Discrimination claims was £8,381and for Disability Discrimination it was £10,235. Although there will always be media stories about huge successful claims, they are rare, and the median award is a more realistic indicator of your potential financial risk. The median compensation payment for Unfair Dismissal claims in the same period was £ 7,521.

Three things you should know about Tribunal Indemnity Insurance

No 1 – You may not even need it

The electrical services company will not sit and watch the river rising or not worry about their stock, just because they have insurance. They will use sandbags, move the stock to higher shelves, and stand by with buckets to bale out the water as it flows in. Nobody wants to have to deal with the aftermath of a flood. It’s better to prevent the damage in the first place. If business owners took the same approach to people issues, and took notice and practical action early on, there would be little risk of a tribunal claim, and therefore little need for an insurance policy.

There are HR experts, like us, who can explain all the rules, and help managers to take each step carefully, ensuring that employees are treated fairly and that the needs of the business are also met. This is equivalent to using sandbags.

If managers are not capable of handling an issue with performance, or there is a persistent problem, such as bullying and harassment, then HR experts, can provide training, coaching and even hand holding to support them. This is effectively like moving the stock to higher shelves. But the effect is longer lasting as they are learning how to manage such situations and won’t be fearful of them.

If matters are so serious that the employee is likely to be able to make a claim at an employment tribunal, there are HR experts like Amelore, who can help the business to evaluate the risk of a successful claim, and mediate between the employer and employee.  If that doesn’t work/or it’s to late for that then they can negotiate the terms of a settlement agreement, making a financial payment to the employee to leave the business and waive all their rights to making a claim against you. This is not desirable, and does cost money, but still salvages the situation, a bit like baling water with a bucket. However often this will be much less than you think.

No 2 – Not all of your costs will be covered

If the tribunal claim goes ahead, there will be legal costs, but much more significantly, there will be huge management time lost in the preparation and aftermath of a tribunal – these costs will not be covered by the insurance. The impact on employee motivation, and even on management morale, which ultimately hits the bottom line of the business, doesn’t have a price, and therefore isn’t covered by the insurance.

Using a pragmatic, knowledgeable HR professional to avoid the problem will always be cheaper than paying a lawyer to fix it.

No 3 – Insurance companies don’t like paying out

The real nub of the issue is this – there are so many ‘get out’ clauses in the tribunal indemnity insurance, that an employer runs a real risk of thinking they are covered, only to find that the insurance company then gives lots of reasons why they won’t pay out.

If the insurance is offered as part of an HR service, there will be a big caveat stating that if the employer doesn’t consult the service provider and follow the employment law advice to the letter, the insurance will be invalidated.

This also means that the HR service provider is likely to sit on the fence, or tell their client what the law is, without committing to a recommendation, for fear of invalidating the insurance. So the whole process will go on and on whereas most SME’s need a quick resolution so they can focus on their business.

Some providers may even boast that they help their clients to make sure their paperwork is correct, so that if a claim goes to tribunal, they will have a ‘bundle’ already prepared, saving lots of time. It doesn’t save lots of time for the business owner or manager trying to do their day job and providing them with that paperwork.

In our experience the vast majority of employees are reasonable people, who in turn want to be treated reasonably by their employer. The vast majority of managers and business owners want to have happy, engaged employees.

Surely everyone’s time and effort would be better spent building good relationships, ironing out misunderstandings, and dealing in a reasonable way with problems, than filling in forms, following scripts and ticking boxes to make sure that the tribunal insurance is not invalidated?

Summary

So in summary our advice is if you are looking at HR outsourcing providers don’t base your decision on fear.  Fear of something you don’t fully understand. If anyone is selling you their services and using fear as their main incentive ask yourself why?

A good HR outsourcing provider will audit your business and then make clear practical proportionate recommendations to ensure you are legally compliant and have good HR practices embedded. This may involve training your managers. This significantly reduces the risk of a successful claim against your business.

Also take care that the outsourced HR provider you select doesn’t tie you into a long notice period as that will tell you something important about them. Long notice periods are designed to cover poor service. Most SME’s don’t have the time or the energy to battle their way out of a contract they have signed in a rush without understanding the potentially negative consequences.

If you do have an employee dispute and are supported by an outsourced HR provider that doesn’t offer Tribunal Indemnity Insurance, this will be dealt with swiftly and you will benefit from pragmatic commercial advice about your options and any risks.

At Amelore we don’t offer Tribunal Indemnity Insurance. We work with businesses and individuals and firm but fair. We have also never been successfully taken to an Employment Tribunal.  We are not complacent about that fact but we are extremely proud of it.

How should payments in lieu of notice be taxed from April 2018?

From 6 April 2018 all payments in lieu of notice will be taxable, whether contractual or non-contractual. Income tax and class 1 national insurance contributions will be due on the amount of basic pay that an employee would have received if they had worked their notice in full.

What are the current tax rules on payments in lieu of notice?

Currently, if you have a contractual right to make a payment in lieu of notice (‘PILON’), that payment is subject to income tax and national insurance contributions (‘NICs’).

If you don’t have a contractual right to make a PILON (because there is neither an express term in the employment contract nor an established custom and practice of making a PILON), any payment made in respect of an employee’s notice entitlement is generally regarded as ‘damages for breach of contract’ and the first £30,000 can be paid tax-free and without deduction of NICs.

What tax rules will apply to payments in lieu of notice from April 2018?

From 6 April 2018, all payments in lieu of notice will be taxable. The principle is relatively straightforward but there is a complex statutory formula for calculating the sum that should be taxed, known as ‘post-employment notice pay’ (‘PENP’). PENP is, broadly, the salary the employee would have received during any unworked period of notice minus any contractual PILON. It is calculated by reference to:

  • Basic pay only (before any salary sacrifice), disregarding bonus, overtime, commission, benefits in kind etc.; and
  • How much statutory or contractual notice (whichever is longer) the employer is required to give to terminate the contract.

PENP is subject to income tax and NICs in full. The balance of the termination payment is eligible for the £30,000 tax exemption and full NICs exemption (provided it is an ex gratia payment).

Statutory redundancy payments are exempt from PENP calculations and qualify for the £30,000 tax exemption, provided they are genuinely paid on account of redundancy.

The new rules will apply only where employment terminates on or after 6 April 2018.

There may be significant tax implications for non-contractual PILONs made from April 2018. For example:

  • An employee’s employment is terminated without notice on 30 April 2018. The employee is paid £5,000 monthly (basic pay); has a 3 month notice period; and there is no contractual PILON. They receive £35,000 compensation on termination. This an ex gratia damages payment, not linked to any contractual terms such as bonus entitlement.
  • Under the current rules, the whole compensation payment qualifies for the £30,000 exemption. Income tax is due on the balance of £5,000.
  • Under the new rules, income tax and NICs (both employer and employee) are due on the PENP of £15,000. The balance of £20,000 qualifies for the £30,000 exemption.

And from April 2019?

Currently if a termination payment qualifies for the £30,000 exemption, tax is due on any excess over £30,000 but no NICs are payable. From April 2019, employer NICs will also be due on the balance over £30,000. With employer NICs currently at 13.8% this will significantly increase the cost of some termination payments.

In practice

All employers should be aware of the new rules and think about how they might impact on any termination negotiations. It seems that PENP will need to be calculated for each employee whose employment is terminating including those with contractual PILON clauses (although we are still waiting for guidance from HMRC).

Where there is currently no contractual PILON clause:

  • Making a PILON where the termination date is 6 April or later will potentially result in significantly increased costs for both employer and employee.
  • Consider whether to exit any employees prior to April 2018 to take advantage of the more favourable tax position.
  • Think about including PILONs in contracts going forward. Having a PILON clause allows a payment in lieu of notice to be made without being in breach of contract, thereby preserving any post-termination restrictions. There will no longer be any tax benefit in not including one.

Please get in touch with us if you would like to discuss the impact of the new tax rules on your termination arrangements.

More about Protected Conversations

An employment relationship can sometimes run its course necessitating a frank conversation with an employee. It may be in the best interests of both parties to bring the employment to an end by way of a settlement agreement.

Often, the best way to start that process is by having a protected conversation.

What is a protected conversation?

The law allows an employer and an employee to have an ‘off-the-record’ conversation in certain circumstances.

If you or your employee are proposing to end your employment on agreed terms, the conversation can be kept confidential. This means that what you say can’t be used as evidence in an unfair dismissal claim. Although there are some exceptions, generally the conversation is protected.

What are the exceptions?

Protected conversations cannot be held in situations where dismissals are automatically unfair, such as those involving health and safety matters or where the protection of the Public Interest Disclosure Act is invoked. Neither is protection afforded to breach of contract or discrimination claims. This can be a problem. An employer may not know what issues are going to be raised by an employee during a protected conversation so always take advice from an HR professional and research as much of the history about the employee beforehand as you can. Recognise that in some situations having a protected conversation many not be the best route to take.

What should you do if you want to have a protected conversation with an employee?

If you’re planning to have a protected conversation with your employee, make sure you prepare in advance. You need as much information as possible. You may find it helpful to ask/research questions like:

  • Why are you proposing to terminate the employment?
  • Has the employee got a history of anything that might be relevant – grievances, disputes, sickness absence etc
  • How much are you offering and how has that been calculated? (Any notice pay would be taxable)
  • Will you expect your employee to work their notice period?
  • Will you be offering a reference?
  • What is the alternative if you don’t agree to a settlement agreement? I.e. manage their performance under an internal procedure which may result in termination for poor performance and notice pay only OR investigate an alternative role in the company?

Your employee is not under any obligation to accept any proposed settlement agreement. In fact, the law doesn’t allow anyone to accept it until they have taken independent legal advice on it (paid for by the employer usually capped at £350 plus VAT)

Ask your employee to confirm (once they have thought about it) whether they would like you to confirm the proposal in writing. This could be a draft settlement agreement or simply a letter or email. This will help you to clarify what is being offered but always ensure that any subsequent correspondence has ‘without prejudice’ in the title or heading.

Can an employee initiate a protected conversation?

Although a protected conversation is usually initiated by the employer, an employee can also request one, provided that it is with a view to agreeing a settlement agreement.

If your employee states that they’re willing to have an off the record conversation, you can go ahead with a protected conversation if you are minded to agree a settlement with them to leave. Let them know that the details of the conversation should be kept confidential because it’s with a view to reaching a settlement agreement.  Make written notes of the conversation you have had.

At the meeting, you could propose a settlement agreement yourself or you could ask your employee to make a suggestion for you to consider.

Although the most important aspect of a settlement agreement is usually the financial amount, you should consider non-monetary aspects such as:

  • a detailed reference
  • career coach support (professional help with finding another job)
  • release from anything in your employment contract that restricts you after the end of your employment
  • paying for a training course

What happens next?

You should give a reasonable period of time for your employee to consider any proposed settlement agreement. ACAS recommends 10 days, although employers rarely give this long in practice.

GDPR – Employee record keeping and beyond

In a series of blogs, Amelore begin to look at GDPR from a HR perspective to ensure employers are ready for the new requirements in respect of their employee data and beyond. This will form part of a continuous focus on this hot topic until May 2018 when GDPR goes live. We appreciate many companies may not yet of begun their GDPR journeys, so we will be offering advice and guidance in short blogs.  We will also help to signpost employers to useful information which extends beyond the processing of employee data.

GDPR is itself an extension of existing UK data protection laws. This new legislation builds on the Data Protection Act (DPA) which employers already need to adhere to. DPA principles cover areas such as ensuring employers keep accurate, secure information.

The ICO (Information Commission’s Office) are at the forefront of helping organisations understand this evolution of our data protection laws. They recently published GDPR Myths. This series of blogs helps to demystify the new regulations.

Data breach – what an employer needs to do?

In ICO’s latest blog they provide valuable advice and guidance on how employers need to respond if a data breach occurs. They report that some employers have expressed concern that any data breach needs to be reported and that huge fines will ensue. The ICO say this is not the case and that only breaches that are likely to risk people’s rights and freedoms will need to be reported.

The ICO also point out that fines will be proportionate and that companies who are open, honest and report without undue delay can avoid fines. It is expected that by now, larger organisations will already have appointed a Data Protection Officer (DPO). However, smaller organisations are also advised to consider who in their organisation is responsible for data. We would advise all organisations, no matter how small, to know who is responsible for data (again not just employee data) and who is responsible for reporting a breach should it occur. This starts to form a robust approach to data governance.

Employee data processing

Employee data processing will be a key focus for many organisations, however some employers may be worried about any potential changes to how they currently store their data.

All organisations will be storing employee records in some way, shape or form; so you are now advised to review these filing systems, including the security of the data you are processing in respect of employing people, to ensure robustness. We have already observed some organisations writing to their third-party data processers asking for evidence of their compliance.

Handlers of this data need to make sure they are processing data fairly and for legitimate purposes. Furthermore, if they are transferring it outside of the EEA there are specific safeguards in place.

For those employers wondering if the UK’s exit from the EU will affect GDPR the government has already confirmed it will not. However, please note that International companies operating across EU states will need to work out who their lead data protection supervisory board is.

Further still, forming a data protection working party or project team to audit what data is being processed is also advisable. Many companies are already helping organisations with data mapping and auditing. Amelore work closely with Mazars to provide a range of services for our clients.

In summary, the good news is that common sense does prevail and that the processing of data where it is necessary for the performance of a contract will be a valid reason for processing. If you have any queries or questions in relation to any of the points made please contact Amelore for further advice and guidance.

We will continue to focus on this topic as we approach next year tackling other aspects of the GDPR (link to first blog) in further detail; such as consent, the right to be forgotten, and subject access requests.

 

Christmas. It’s the time of year when…

This is the ultimate advice checklist for how HR should deal with Christmas issues…
1. Employees sometimes do stupid stuff. At Christmas time and otherwise. It’s a fact of life.
2. Just deal with it.
3. Resist the urge to worry too much about vicarious liability, discrimination and constructive dismissal. Although it is probably a good idea not to put any mistletoe up in the office.
4. Resist the urge to write any sort of policy.
5. Resist the urge to put any sort of disclaimer about behaviour in any Christmas party related literature. If someone wants to punch Bob from Accounts on the dance floor after 12 pints of beer then they will do it anyway. See points 1 and 2.
6. Resist the urge to write special rules about absence from work after social events. See point 2.
7. Apply Christmas common sense.
8. Avoid sprouts in an office environment at all times. This is especially important in small or poorly ventilated offices.
9. Never, ever, buy Secret Santa presents from Ann Summers.
10. Put a tree up; Eat some Quality Street; Wear a Christmas jumper; and remember to enjoy yourself.

The impact of the Uber case and other recent employment law changes.

 

You may not normally pay a lot of attention to the world of employment law – after all that’s what HR professionals are for – but you may well have noticed the recent case about Uber in the media. So what does the recent case ruling mean for you and your business?

Put simply the Uber case was about whether the taxi drivers working via the Uber app are self-employed or actually work for Uber, so are classed as “workers”. Why does it matter?  Being a “worker” gives you a number of rights and protections under current UK employment law that you don’t get if you are self-employed.  Being a worker is a big advantage for the people driving for Uber as it now means that they are entitled to earn at least the National Living Wage (if they are aged 25 years +) or National Minimum Wage (if they are under 25), as well as being entitled to paid holiday and other benefits.  Up until now many Uber drivers had complained that they weren’t earning even the National Minimum Wage and were being treated as “slave labour”.  This is now set to change, pending an Appeal of the case by Uber.

A lot of businesses use self-employed people, be they consultants, skilled tradesman or technical experts.  This is particularly true of small businesses and new “start-ups” who don’t necessarily have the budget or need for staff all of the time.  However, neither you as a business owner, nor an individual, can just decide that you want someone to be self-employed – they have to meet certain criteria or conditions, which can be complex to interpret.    If you get it wrong, both the business and the individual are liable for some hefty penalties from HMRC. You can find more information about this here  but we also recommend that you get some appropriate professional advice on this if you are in any doubt – we can assist with this.

October is one of the two months when changes to employment law currently happen. This October (2016) has seen a few changes that, depending on the nature and size of your business, you may need to take action on. The main changes are:

  • Increase in the National Minimum Wage rates – effects all businesses and sectors

Effective from 1 October 2016 there has been an increase in all levels of the National Minimum Wage that you must pay to any workers or employees.  The new rates are:

Age 21 up to 25                      £6.95 per hour  (+ 25p)
Age 18 up to 21                      £5.55 per hour (+ 25p)
Under 18s                               £4.00 per hour (+17p)
Apprentices                            £3.40 per hour (+10p)

Workers / employees aged 25 years + are entitled to the National Living Wage which is currently £7.20 per hour and has not changed.

  • Modern Slavery statements – effects any business supplying goods and / or services with a turnover of £36m + per annum

The Modern Slavery Act was implemented earlier this year, and it’s first deadline for businesses to take action has just passed.  If you are a business  whose turnover is £35m + and whose financial year ended between 31 March and 30 April 2016, then your business should have published a “modern slavery statement”, signed by a Director, on your company website or have one prepared that you can issue on request.

Hereon in every organisation whose turnover (relating to goods and / or services) exceeds £35m per annum needs to publish their annual “modern slavery statement” within 6 months of the end of their financial year.  If your business hasn’t yet prepared your statement yet and are now or soon required to do so, please contact us for help and advice.

There are other changes on the horizon too, that we recommend that your business starts preparing for:

  • Mandatory gender pay gap reporting – reporting to start from April 2017, for publication in 2018 onwards

This will apply to any organisation that employs 250+ people.  The guidance on what is required in the reports is still being developed and is complex.  Large fines are likely to be issued for non-compliance. If you are a larger business and don’t already analyse and report on your gender pay differences / gap now is the time to start preparing to do so.  We have expertise in this area and are happy to help you prepare – please contact us.

  • Pension auto-enrolment updates – now scheduled for April 2018

This will apply to all businesses who employ at least one worker / employee.  This will see an increase to the minimum employer contribution rate, taking it to at least 2%, as well as an increase to the minimum employee contribution rate.  Given the amount that these increases will be an added employment cost to your business, we would recommend that you start your financial modelling now so you can see how this will affect your future workforce costs.

Company mergers – creating one big, happy family?

 

mergeIn my HR “life” back in the UK, I often found myself providing advice on managing change, whether it be restructuring, TUPE transfers or subtler cultural change.  I now find myself on the other side of things, as Happy Holidays and one of their former competitors, Smiley Holidays, have both been acquired by a large French company.  While these purchases took place a while ago now, it is interesting to see how the changes have now started to trickle down to the staff (me!).

So, can these changes create one new, contented holiday company / family?  At the moment, the views of myself and colleagues are mixed – we’re not entirely convinced that things will be better, or even as good.  What could be done to change our minds and to keep us engaged and motivated?  Here are some suggestions:

  • Communicate, communicate, communicate

With any changes or takeovers there are always rumours about what will and won’t happen.  Clear, regular communication is key if you are to stop the rumour mill and keep staff feeling engaged, rather than worried for their jobs.  A monthly newsletter is better than nothing but it doesn’t really do all it needs to.  How about using social media and other forms of communication too?  – Especially if staff are based in multiple locations or work different shift patterns.  Certainly face-to-face updates and briefings tend to be the most popular method with staff themselves, so can this be done in any shape or form? (Skype, Facetime, podcasts etc)

  • It’s not all about structures…..

Most people tend to think of “change” as being about restructuring, but that isn’t always the case.  Yes, it can make sense to join up some teams and to make some efficiencies and savings while doing so, however, this shouldn’t be the knee jerk reaction.  If you are keen to keep current brand identities then you need to keep some differences in place, which means not merging and restructuring everything.  Be clear on what structures will change, why and when, so allowing other, not directly affected teams / departments to stop worrying about what might happen to them. (at least for now)  At least they can focus on their roles properly again and not be distracted or worried about what may lie ahead.

  • Timing is everything

Make sure you understand what the businesses do when and why.  Are there any critical or very busy times when it would be unwise to change things?  For example for Happy Holidays, changing all of the company mobile phones over to a new network provider with new phone numbers perhaps should have been done outside of the holiday season!  There would have been no customers in resort trying to call old numbers or not knowing about new numbers, and would have avoided a number of problems, upsets and complaints.

  • Who are we again?  What do we do?

Staff do identify with the organisation they work for and can often be surprisingly loyal to it.  Staff will feel that they have their “psychological contract” in place with their employer, as well as their actual employment contract.  Any change can potentially challenge the trust between employer and employee, and potentially sever the “psychological contract”.

It’s really important that staff can see and understand what the future holds and what will be changing. They can then choose whether they want to be part of this or not, and act accordingly.  This can include seemingly obvious things such as – are we still planning to deliver the same product(s) or service(s) to the same customer(s)?  Will we keep the same company values (eg. “green” or “ethical” commitments)?  Will I still wear the same uniform?  Will I still work in the same place?  Will I be working the same hours?  Things like this can really make a difference to someone deciding whether they will stay and go through the changes, or leave now to avoid them.

Even though this is about the two holiday companies I hope that the suggestions will be helpful for your business too.  If anyone from Happy Holidays is reading this, you know where I am and I’m more than willing to make this change a positive one!

www.amelore.com

It’s holiday time – So, how does your holiday policy shape up?

Whilst most employers run the usual January to December holiday year, some companies operate a holiday year which mirrors their financial year. Those very brave employers have a holiday year which follows each employee’s employment start date (administratively this must be a nightmare!)

Employers with an April to March holiday year will find themselves in a peculiar situation for 2016 through to 2018. Remember that all workers are entitled to a minimum of 5.6 weeks’ paid holiday, which means 28 days for a full-timer. Bank holidays count towards this entitlement.

Due to the moving Easter holidays, rather than the typical eight bank holidays in a year, April 2016 – March 2017 will have only six bank holidays, while April 2017 – March 2018 will have ten.

So what can you do about this?

Your first port of call is to check your contractual wording around holiday entitlement. This could throw up a number of different scenarios.

Here are a few (using full-time workers as an example):

  1. When the contract states: “you are entitled to 20 days holiday plus all bank holidays”. For April 2016 – March 2017 this would mean that your employees would only receive 26 days holiday, which is obviously below the statutory minimum entitlement. You would therefore need to give them an additional two days paid holiday. For April 2017 – March 2018 they would receive 30 days holiday, but without specific wording which has anticipated this exact scenario it is unlikely you will be able to deduct the extra two days, as the entitlement is to “all” bank holidays.
  1. When the contract states: “you are entitled to 20 days holiday plus 8 bank holidays”. Again your employees would only receive 26 days holiday for April 2016-March 2017 as there are only six bank holidays. You would therefore need to give your employees an additional two days paid holiday to ensure they receive their statutory minimum entitlement.

However, for April 2017 – March 2018 you could choose not to give employees two of the ten bank holidays (there is no automatic right to time off on a bank holiday). However, unless they agree otherwise, you would not be able to deduct these from the 20 day holiday entitlement as the contract says that they are entitled to 20 days holiday. You would instead have to get them to work two bank holidays, which may not be practical if the office is closed and certainly will not be popular.

  1. When the contract states: “you are entitled to 28 days holiday inclusive of bank holidays”. The result of this is the same as point 2 above. You will have to give two extra days for 2016-2017 and you could choose to require employees to work two bank holidays for 2017-2018.

This situation is bound to arise again in the future so the next time you undertake a review of your employment contracts it would be worth considering whether you want to include wording in the holiday clause so that holiday entitlement can be adjusted each year if necessary to allow for this scenario.

This may be even more desirable where you already offer holiday in excess of the minimum statutory entitlement and don’t want to be in a position of having to afford additional days to employees in a particular year.

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Eu exit and the implications for your business

Following the unexpected confirmation of a “leave” vote, many businesses will already be turning their attention to what happens next?

The most important message is that the referendum result does not trigger any automatic legal changes; neither does the UK’s formal notification that it will be withdrawing from the EU.

The UK will continue to be a member of the EU for the time being, and the status and effect of all UK and EU law remains unchanged for now, and possibly for some time in the future.

Beyond that, however, much remains to be debated and negotiated – such as the shape of trading agreements between the UK and the EU, the status of EU-derived law, thorny issues such as acquired rights, and the UK’s relationships with non-EU states.

It’s still business as usual for a while – no immediate changes

Neither the referendum result nor the UK’s formal notification to the EU has any immediate legal effect. From a legal perspective, it will be ‘business as usual’, probably for some time to come.

  • The next step is for the UK to give formal notification to the EU of it’s intention to leave. This will start the withdrawal process, which must be concluded within two years unless an extension can be agreed (which requires the consent of all twenty-seven remaining Member States).
  • The future trading relationship between the UK and the EU could take one of a number of different forms; which form it takes will have significant implications in terms of the movement of goods, services, people and capital.
  • The UK will also need to undergo a major legislative project to identify which areas of EU-derived law will stay, which will be modified and which will no longer have effect in the UK.

Each of these processes is likely to involve much consultation with the UK public and industry. Businesses have an important part to play in shaping the environment that they will be trading in, domestically and cross-border.

Employment implications of Brexit for your business

UK employers are unlikely to see any large-scale changes to current employment law in the short-term as a result of the UK leaving the EU.  The UK’s on-going relationship with EU Member States, as well as our own workplace culture, is likely to demand that the UK retains many of the EU-derived laws that have already been incorporated into domestic legislation.

Free movement of workers within the EU

Now we’ve voted to leave the EU, the free movement of workers will certainly be affected. However, changes to legislation are likely to be gradual rather than immediate.

While in theory citizens of EU member states no longer enjoy the automatic right to work in the UK (and vice versa), this will form part of negotiations to establish the UK’s new trading relationship with the EU.

EU nationals already employed in the UK may already have acquired rights under UK legislation, depending on how long they’ve been here. It’s likely that many will be permitted to stay in return for a similar agreement for UK nationals currently employed in EU member states.

For prospective employees, however, it may be a different story. While it will still be possible to employ personnel from EU member states, there may be extra administrative costs to be factored in, such as visa applications. An EU employee’s capacity to remain long-term in the UK may also be affected.

There may also be limitations on the type of workers that will be allowed to seek employment in the UK. If we choose to follow a model more like the US or Australia, visas may only be granted for those in professions identified as having a particular need.

Other employment legislation changes

We also expect some piecemeal reform to specific areas of employment law, such as:

  • Clarification of the rules for calculating holiday pay and how holiday accrues during periods of long term sick leave, under the Working Time Regulations (WTR)1998.
  • There is on-going litigation regarding inconsistencies between the WTR and the EU Working Time Directive (which the WTR implements in the UK), creating wide-spread confusion for UK businesses and potentially significant accrued and on-going liabilities.
  • Whilst the UK government is unlikely to repeal current working time rules, it may well take the opportunity to clarify the rules around holiday pay and provide much needed guidance for employers.
  • Pro-business reform of agency worker rights, given the additional costs and complexities of engaging agency workers since the introduction of the Agency Workers Regulations 2010, which implement the Temporary Agency Work Directive.

Whilst the AWR gives agency workers limited equal treatment rights with comparable permanent employees from day one, following a 12-week period, an agency worker has a right to equal pay, working time and holiday with a comparable permanent employee. The extent of any reforms in this area will depend on the exit terms the government is able to negotiate.

KEY THINGS TO CONSIDER NOW

Understand the profile of your workforce. How many are EU citizens? How long have they lived in the UK? Do any have the right to a British passport that you can support?

If you are in a sector recruiting lots of EU nationals or likely to, consider accelerating any planned recruitment before changes are announced to the process. Much more likely that any existing arrangements will be allowed rather than unpicked.

If you are planning to expand into areas of Europe, familiarise yourself with local employment legislation and understand any opportunities to second staff from UK and vice versa.

If you would like to speak to an experienced employment advisor, please contact us.

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