Monthly Archives: April 2013

Employees Can Become Shareholders

The Growth and Infrastructure Act is soon to become law with the employee shareholder provisions expected to take effect in autumn 2013.  Therefore, an employer and employee will be able to agree that the employee will give up their statutory rights to unfair dismissal protection (other than automatic unfair dismissal), redundancy pay and to ask for flexible work arrangements or time of for study or training, and will have to give longer notice if they intend to return early from additional maternity, paternity or adoption leave in return for fully paid up shares worth at least £2,000.

Before an employee can agree to having ‘employee shareholder’ status, the employer must provide a written statement with full details about the shares and the rights they carry, including, amongst other things, whether they carry any voting and dividend rights.

The employee will then have to take independent legal advice on the terms and effect of such an agreement regarding its effect on employment rights, the nature of the rights and obligations attaching to the shares and what will happen to the shares if the employee leaves.  The employer must pay the reasonable costs of obtaining such advice, even if the individual ultimately decides not to accept the offer.  Existing workers will be protected from detrimental treatment if they refuse to change to employee shareholder status.  And although an employer is free to insist on employee shareholder status for a new joiner, an individual will not lose any benefits if the reason for turning down a job is that they don’t want to accept such status.

How to Deal with A Tier 4 Visa Expiry

Living in a global economy from time to time organisations may take on a foreign student as an employee.  However foreign students require a Tier 4 visa to allow them to live and work in the UK and this visa must not expire without there being certain consequences, however, sometimes, it may happen, but has to be dealt with according to appropriate government procedures.

An extension to a Tier 4 visa should be done in good time before expiry, however, if a Tier 4 visa has expired the employee has the right to several appeals – to the Upper Tribunal, Supreme Court and finally European court.  Whilst they are appealing (complying with the deadline instructions) they have the right to remain in the UK as leave is automatically extended.  Employers should ensure to keep a copy of the paperwork submitted on the personnel file in case the company is investigated by the UKBA.

If the case goes all the way to final appeal and that is rejected the employee should vacate the country within 28 days.  Should this happen the company should use the disciplinary procedure to terminate their  employment for some other substantial reason so they are not held liable for his actions and in case does not comply with leaving the country.
If the employee has the right to appeal and chooses not to then they becomes an overstayer and can remain in the UK for up to  90 days.  Within 28 days of becoming an overstayer they then  must make an in person application and meet certain criteria.  If this application is refused they must leave the country within 28 days.  If this route is chosen again it is recommended the company terminate the employee’s employment using the disciplinary procedure to avoid any liability.
Should the employee return home and make a further application to return to the UK they would not be able to come back for a year.

Get On With Your ******* Job! Swearing in the Workplace

Traditionally, swearing has been associated with male-dominated industries such as construction and warehousing as well as highly pressurised environments.  However, whilst the construction industry is trying to stamp out such behaviour in an effort to create a better image of the industry as many of its employees work in the vicinity of the public, there is a perception that it is becoming commonplace in other types of workplace. Where as once our language u

sed to be very formal and very structured, now it is increasingly casual just like many aspects of our lives.

Gordon Ramsay, who regularly appears on TV as a highly visible role model perpetuates the message that swearing in the workplace is ok.He defends this highly directive management style by professing it is needed to get the best out of his staff.As a highly successful businessman, a view can be taken that it works.However, individuals who have been on the receiving end of such a management style may take a different view.

 

Notably there is the high profile case, which reached the law courts in 2003 with Horkulak v Cantor Fitzgerald where Horkulak was awarded £1m damages after suffering verbal abuse from the Chief Executive.

Likewise being subject to bad language from colleagues can have an adverse affect on some individuals as demonstrated by the Green v Deutsche Bank case.Green suffered several mental breakdowns due the treatment she received from colleagues which included verbal assaults and was awarded £800,000 to compensate for the past and future damage to her career as a company secretary.
This case demonstrates the mental and physical trauma the use of bad language in the workplace can cause.Although an extreme case, employees should be empowered to have the ability to say stop and to have managers and colleagues listen to them.

 

Swearing in the workplace is usually provoked by frustration, anger, impatience or when things go wrong.  There is disagreement, conflict and stress.  Whereas we used to keep our mouths buttoned up, these days feelings are more on show.
 

 

A workplace culture that promotes the use of swearing can have a knock on effect to the business as clients and customers can be offended by such behaviour leading to lost business and reduced profits. A company’s reputation may also be at stake giving out an impression of a lack of professionalism.  Furthermore there is the danger of offending and abusing colleagues, which may lead to litigation and employment tribunals.

Swearing can be seen as an inability to articulate, which at any level should not be acceptable.The use of bad language is tantamount to bullying, harassment and verbal assault, which is covered by various pieces of legislation notably the Equality Act 2010 and  Human Rights Act. 
An additional piece of legislation is the Protection from Harassment Act 1997, which is primarily a criminal measure aimed at dealing with stalkers. However, it is very widely drafted and covers any “course of conduct” which alarms a person or causes them distress. This would include verbal harassment and bullying. The Act both imposes a criminal penalty and allows the court to award damages for harassment.Cases can be brought up to six years after the event.
It was used in the case of Majorowski v Guy’s and St Thomas’ NHS Trustwhere in 2005 the Court of Appeal decided that in cases of workplace harassment, an employer can be liable for conduct by an employee in the course of their employment. This means that if a manager bullies subordinates, there is a risk of a claim for damages even where there are no grounds for a discrimination claim and no physical or mental injury has been sustained.Majorowski won his case of “vicarious harassment”.

Ideally companies should adopt zero-tolerance with a top down approach lead by senior management.

The boundaries and management of employee behaviour in this area should be defined by a bullying & harassment policy, a professional code of conduct and as a“belt and braces” approach the implementation of an aggression and violence at work policy.All of these should incorporate the company’s stance on the the use of bad language and verbal assaults in the workplace and the consequences for ignoring company policy with use of the disciplinary policy.Swearing and the use of bad language is part of conduct and ultimately can be a reason for fair dismissal.The implementation of a swear box with proceeds going to charity may also be considered.

 

 

 

 

 

4 Top Tips For Employing Casual Workers

Casual workers can be a bonus to organisations that have to meet peaks workflow from time to time.  Often taken on a Christmas or busy periods casual workers are used extensively in many industries.  Whilst they contribute to a flexible workforce there are key things to bear in mind in terms of their employment.

1.  Ensure you issue a written agreement (contract of service) that reflects the nature of the casual work offered this is known as a zero hours contract (also casual hours contract or sessional contract).  Also ensure that you only intend to employ the worker on a casual basis ie not offering regular hours on set days at set times.  These contracts are operated on mutual no obligation basis therefore there is no obligation for an employer to provide work and there is no obligation for the worker to accept it.

2.  Be aware that truly casual workers have mimimal employment rights over and above the provision of holiday pay calculated at 5.6 weeks per annum pro rata.  This can be calculated on a quarterly basis by recording hours worked and a pro rata sum provided accordingly.  Alternatively if more regular payments of holiday pay are required, they can be provided on a rolled up basis provided this is clearly declared on the contract and in the wageslip.

3. Casual workers should receive the national minimum wage and may be paid SSP provided they meet eligible criteria.  They have the right to be protected from unlawful deduction of wages and discrimination. They have protection from whistleblowing and with health and safety.

4.  Be aware that workers that are used on a regular basis may be able to claim further employment rights in an employment tribunal. It is best therefore to retain a bank of casual workers and rotate their use so that the same worker is not offered work on a continous basis.  Assignments or pieces of work should not be too lengthy.  Furthermore, there should be sufficient gap between assignments – at least more than  a week.

 

Traits of Successful Female Business Leaders

In the last few days two powerful female business leaders have been in the media. Margaret Thatcher who has died and Karren Brady, Managing Director of Birmingham City Football Club who was interviewed on TV by Piers Morgan. The two share a remarkable achievement – they both made it big in a male-dominateed environment where the glass ceiling is alive and well; these two well and truly smashed it. Margaret Thatcher did it in the 1970s and achieved the position of Prime Minister when in those days it was truly unthinkable that a woman could do so.  Six years before she achieved that role she was seen telling a little girl on TV there would not be a woman Prime Minister in her lifetime.  Even by today’s standards it was a miraculous achievement. She then went onto shape the country giving many people standards of living that they would not have had if it hadn’t have been for the Iron Lady. Karren Brady began her rise at the tender age of 23 working her way up in the tough mans world of football. It seems to me that these two female leaders both demonstrate traits that have made them successful.

Vision and Focus

Both leaders had a clear vision. Thatcher’s was to make the country strong and properous again after years of strife with the unions that had brought the country to it’s knees. At the time her vision was very ambitious.  Whilst some may have questioned whether it was attainable, through her drive it became a reality.  She was strong and did not turn away from achieving her goal despite the many obstacles.  Her famous phrase “the lady is not for turning” demonstrated her resolve not to be dissuaded from her chosen course of action, which had the country’s interest at heart always.  Karren Brady’s vision was to turn an ailing football club into a strong and properous going concern.  She took the team into the top league with a healthy bank balance and turnover of £50m having persuaded David Sullivan a  millionaire to buy and let her run the club.  With her resolve she knew she could do it.

Dominance

Both women had to be dominant in their field.  Thatcher notoriously dominated her male colleagues in the Conservative party and even had voice coaching to lower her voice so that she spoke more like a man to increase that dominance.  Karren Brady in her own way has had to have “balls of steel” to dominate in the world of football.  Both women have had to have tenancity to achieve their goals.

Confidence

Both Thatcher demonstrated and Brady demonstrates a healthy level of self-confidence both believing in their ability and skills.  Thatcher may have appeared nervous on many occasions, which is another reason why the voice coaching was brought into play to hide her shrilly female voice when she was giving speeches.  Thatcher took risky decisions which would affect the country and Brady took risky decisions related to the football club that could have cost her millionaire boss millions, but for both women the risks paid off as they held their nerve.  They took responsibility for their actions whilst moving everyone forward.

Innovation

Innovation is key as a business leader and both women were bold to create and carry out new plans challenging the status quo constantly.   Thatcher closed down many unprofitable mines, diminished the power of the unions and sold off the publicly run utilities.  She gathered a top team of politicians around her that supported her decisions getting rid of the nay sayers she had initially brought together.  Brady collaborated with others recognising the need to form win/win situations.

Dedication

Thatcher and Brady were dedicated to the job in hand.  They put this above all else in their lives.  Whilst both had husbands and a family their job came first.  Brady went back to work after three weeks of having her first baby due to the dedication she had.  Thatcher entered politics when her her twins were very young and when most women gave up work when they married and had a family.

Whilst the two women had and have very different personalities in their own way they have achieved great things in a male environment with history that can never be altered and they act as superb role models to other women.

5 Top Tips for Pension Auto Enrolment

According to research carried out recently by RSM Tenon many small businesses are just not ready for pension auto enrolment.  56% of employers are completely unaware as to what auto-enrolment is, or do not even realise that it applies to their business and 70% had no plans at all to implement this statutory process.  Furthermore, 40% of SMEs do not offer a pension at all and a further 5% offer a pension but has no members.  With these disturbing facts in mind here are 5 top tips to implement pension auto enrolment.

1. Make a plan

The implementation of pension auto enrolment takes about nine months to one year to implement so it is important to start preparing as soon as possible.  It is a statutory process and can not be ignored.  There are key staging dates that an employer needs to be aware of (the staging date is when an employer has to start auto enrolling their employees) although it is possible to implement pension auto enrolment before the planned staging date.  The employer needs to nominate a contact within the company who will be responsible for implementing the process.  Working backward from the staging date the plan should incorporate sufficient time to complete the required processes such as those detailed below as well as developing admin procedures and setting up payroll.

2. Analyse the existing pension scheme

An existing pension scheme must meet the eligibility laid down by the Pensions Regulator.  If no pension scheme is in place then the government NEST scheme may be implemented which has no set up charges.

3. Assess the workforce

The workforce should be categorised into eligible jobholders, non-eligible job holders and and entitled workers.  Eligible jobholders will have to be automatically enrolled.  They are aged between 22 and state pension age, have qualifying earnings that trigger automatic enrolment.  Non-eligible jobholders are aged between 16-21 or state pension age and 74 and have qualifying earnings that trigger automatic enrolment.  Entitled workers have the right to join the pension scheme but do not have qualifying earnings aged between 16 and 74.  This should be an annual process once auto enrolment has been implemented.

4.  Communicate to the workforce

Information about pension auto enrolment must be provided to the workers by the employer in writing.  This should preferably be by template letter.  An employer can also decide to provide information sessions to their workforce so they can have their questions answered or could develop an information booklet (which could be given out during an induction process to new starters).

5. Inform the Pension Regulator and keep records

An employer must keep certain records in support of the employer duties that will enable them to demonstrate their ongoing compliance and should build these record-keeping requirements into their existing processes.  The scheme should be registered with the Pensions Regulator.

For more details visit http://www.sjbealehrconsult.co.uk/employee_reward.htm

Proposed Changes to Criminal Record Checks

Disclosure and Barring Service Proposed Changes to Criminal Record ChecksIn the UK, some previous criminal convictions are “spent” after a period of time, meaning that they do not have to be revealed to prospective employers. More serious crimes are never spent reflecting their gravity. Those looking to work with vulnerable adults and young people must undertake an enhanced criminal records check, which is now provided by the newly formed Disclosure and Barring Service (DBS). Such a check currently discloses all convictions and cautions which are then revealed to prospective employers, even those that are “spent”. However, proposals announced by the Government will permit some old and minor offences to be filtered out from checks by the DBS. This new checking system is due to be implemented within weeks, subject to Parliamentary scrutiny.

It is proposed that old and minor cautions and convictions will no longer appear on criminal records checks undertaken by employers in relation to positions where the potential recruit will be working unsupervised with children and vulnerable adults. Adult cautions will be filtered from records after a period of six years, whilst those received by a young offender will be filtered after two years. Adult convictions resulting in a non-custodial sentence will be filtered after a period of 11 years, whilst such a conviction received as a young offender will be filtered after five and a half years. Some cautions and convictions will never be eligible to be filtered from criminal records checks, including serious violent and sexual offences, offences with a custodial sentence and multiple offences.