In April 2020 the government is to introduce parental bereavement leave which will allow the parent, carer, foster parent, adopter or guardian of a deceased child under the age of 18 to be given two weeks paid bereavement leave. The parent of a baby having been stillborn up to 24 weeks will also be able to benefit from this paid leave under the Parental Bereavement (Leave and Pay) Act. This is the most generous entitlement to bereavement leave in the world.
Employees will receive a statutory payment which employers can claim back. Leave can be taken in one block or two depending on an employee’s requirement in the 56 week window following the death. Prior notice need not be given. There would not be a need to provide a copy of the death certificate to the employer.
In advance of the law being implemented employers need to draft a policy so that employees know what is available in their workplace should such a tragedy occur. Employers may adhere to the statutory minimum, but may of course enhance the entitlement.
I was recently contacted by BBC Radio Northampton to see if I would speak on the radio about what happens when an employee’s pet has died. Whilst most employers have a policy in place for compassionate and bereavement leave for a family member, there is rarely a policy in place that tackles the issue of pet death.
The British are well known for being animal lovers. More and more dogs can be brought to work with the permission of the boss – it saves on doggie day care or the risk of damage at home caused by separation anxiety and can dramatically improve morale having their companion at their side all day. It is a well known fact that having a dog around for example can lift people’s spirits and relieve stress. Pets can be integral to our lives.
For many people their animals mean the world to them when they are alive and when death occurs it can be like losing a member of the family with all the heartache and grief which that brings.
To some employees the idea of having time off for a pet death might not seem important, but other may want to take some time out. It can be a tough time for some with feelings of loneliness, guilt, isolation and depression impacting on mental and physical health. Work can suffer and it might be difficult to concentrate. Colleagues need to be seen to be supportive even if some can’t understand emotions they might be witnessing. We are all different in how we cope with things.
There is no right to time off for the death of a family member let alone a pet death but having some empathy can go a long way to increasing morale. I once worked for an employer who allowed a senior manager to have a few days off with pay to mourn the death of a dog. A forward thinking employer might decide it would be a good idea to draw up a pet death policy to make it clear to staff what to expect and where they stand. Having a policy in place shows an employer cares. The policy should include how many days bereavement leave is allowed and what pets might be covered. Losing a dog or cat that may have been with the family for many years may be quite different to losing a pet goldfish. The policy should include details about what pay may be received.
Details of where employees could get help with their grief could be included. Currently Blue Cross offer a pet bereavement service with a daily twelve hour helpline. The Cats Protection Society offer Paws to Listen as they recognise impact of a cat death is often underestimated. The Friends at the End service is provided by the British Horse Society. They all offer pet-focused counselling type helplines allowing a grieving pet owner to talk about their loss with someone who understands. Alternatively a company may have an employee assistance programme available for employees to access.
When the employee returns to work it might be good to encourage them to talk about their loss before moving onto what they have missed whilst being away.
For more about pets at work read my blog http://sjbealehrconsult.co.uk/blog/pets-at-work-considerations-for-employers/
IR35 is designed to assess if a contractor is self employed or really an employee trying to hide from paying the full appropriate amount of tax owed. Legislation for IR35 was introduced in April 2000 to prevent tax avoidance. Many people seem to think it is very complicated but there a few basic rules to stick to that may avoid problems, however, there is no guarantee with HMRC. Any contractor subject to a tax investigation may face months of intrusion whilst their accounts paperwork is sifted through and examined.
The principles of IR35 that determine if you are a genuine contractor or a “hidden” employee are based on control, substitution and mutuality of obligation.
Control means just that. If the company taking on the contractor dictates quite clearly how the contractor must work in terms of hours, duties, venue, etc then it the contractor could be deemed to be an employee. If there is flexibility for the contractor to work as they please using their own equipment then they may be able to show they are not an employee and outside of IR35.
Substitution also means just that. If the contractor has the ability to substitute another contractor in their place at any time then IR35 may apply to the working relationship.
Mutuality of obligation means that although the company may offer work the contractor has the ability to turn it down. The company also does not have to offer any work. With such a relationship IR35 may not apply.
A contractor working outside of IR35 will take the financial risk of not getting paid. They should be invoicing the company and dealing with their own tax and national insurance. They should be able to work for any number of companies and not working exclusively for just one company.
With any working relationship it is important to have an agreement in place that includes the above clauses.
In April 2017 the public sector was expected to identify which contractors in their employer were inside or outside of IR35 and issue the appropriate documentation ie an employment contract or a sub contractor agreement. The onus was on the public sector bodies to do this and ensure the tax set up was correct. Many public sector bodies will only accept contractors working through an umbrella company who take care of the tax obligations. Umbrella companies and agencies providing contractors to public bodies could also be liable if IR35 is not managed correctly.
In April 2020 this obligation will be introduced for the private sector.
For a contractor it may be about risk assessment. Whilst the onus is on employers to get this right sometimes things can go wrong so it’s important for a contractor to take responsibility for their own tax affairs, as always, and aim to get this right. Contractors that get it wrong could end up paying the tax owed plus penalties and interest.
The latest Pensions Regulator’s commentary and analysis has revealed that 66% of employees are now members of a pension scheme, compared with 47% in 2012. The Pension Regulator declares auto enrolment a success. It seems the historic decline of the working population to provide for their pension has been reduced.
Compliance rates of 95% have been recorded in relation to the first group of small and micro employers to implement automatic enrolment. Almost 60% of employers who are still to go through the process are micro firms with between one and four employees, and around 950,000 employers are forecast to implement automatic enrolment within the next two years. It is therefore important that small and micro businesses engage with the process.
The report also found that around three million employees have been enrolled in a master trust, and more than 185,000 employers used the ‘Duties Checker’ tool on the Pensions Regulator’s website between October 2015 and March 2016.
However, the implementation of this statutory process by all businesses, continues to face problems as it has been reported that enforcement action taken against businesses for failing to comply is up by 300%. The Pension Regulator has escalating powers to deal with non-compliance in the form of fines that can accrue on a daily basis. The Pension Regulator can also ndertake investigations and issue compliance notices.
In the next two years 950,000 small and micro businesses will have to put a pension scheme in place. If they do not understand the process they should be seeking advice as soon as possible.
Outdated or non existent employment contract and employee handbook
This is one of the main reasons I am contacted by small and medium sized businesses. It is quite easy for existing documents to get out of date as the employment law changes frequently. Despite the implementation of the Employment Rights Act 1996 that requires an employer to provide a new employee with employment terms and conditions (contract) within eight weeks of starting employment, many business still do not do so. Failure to provide this document can lead to compensation equivalent to up to four weeks pay in an employment tribunal. An employee handbook sets out the guidelines and rules that all employees have to adhere to and should be drafted in accordance with current employment law. Outdated policies could lead to wrong actions being taken against an employee and a possible employment tribunal.
Lack of understanding with employment law
Since the 1990s there has been a steady stream of laws related to employment that have been implemented in the UK. Employee issues such as disability, pregnancy, discrimination, health and safety and pay can be complex to deal with. Many laws now contradict one another and it takes an employment law specialist to unpick the essentials for any given employee situation. The cost of failing to understand current employment law could lead to an employment tribunal.
A disciplinary matter needs urgent attention
From time to time a serious situation may occur in the workplace and it is important that, even if it is minor, that it is dealt with quickly. Certainly in agross misconduct situation it is often essential to suspend an employee or employees as soon as possible whilst a thorough investigation takes place. Time is of the essence to ensure that any important evidence is not hidden or destroyed. It is important to take urgent advice where you feel you are lacking experience of how to adequately handle these matters.
An employee is not performing well
So many businesses have under performing employees that they fail to deal with. Unfortunately this can impact on profits and employee morale. It is not nice for fellow employees to see a poorly performing colleague not being dealt with by management. The matter should be dealt with in a structured legal framework to try and get the employee back on track. It can be time consuming to deal with but ultimately the employee can be fairly dismissed if a performance management process fails.
You have no time to deal with employee matters
Dealing with employee issues can be very time consuming. With a problematic employee you have to meet with them and keep a paper trail of what you have done to try and manage the situation. Most business owners prefer to keep their focus on the business which is time consuming enough without have to deal with problematic employees which is where HR can help.
The government has just launched consultation about the Trade Union Bill as they propose to reform strike ballot laws and modern trade union law. The consultation will close in September 2015.
The main proposals are:-
- industrial action will require a 50% turnout
- 40% of all eligible voters must vote in favour of industrial action which affect important public services
- the ban on using agency staff to cover striking workers will be lifted
- a 4 month limit on a strike mandate, after which another ballot is required
- more specific requirements for the wording of the ballot paper
- banning automatic opt-ins to political donations from trade union subscription fees
- increased notice to employers so they can prepare and put contingency plans in place
- tackle intimidation of non striking workers
The government has published the draft Trade Union Bill, along with three separate consultation documents on ballot thresholds in important public services, hiring agency staff during industrial action and tackling intimidation of non-striking workers.
The Government claims that the proposed legislation,will create greater transparency around union practices and will ensure strikes are the result of a clear and positive democratic mandate from union members after all other possibilities have been explored.
This has of course angered unions as they claim it would make all legal strikes impossible.
Workers have won a groundbreaking case at the Employment Appeal Tribunal to include overtime in holiday pay.
This means all people working voluntary overtime could claim for additional holiday pay. Currently, only basic pay counts when calculating holiday pay.
The details of the ruling, particularly on whether claims can be backdated, have yet to be released.
The ruling could be appealed to the Court of Appeal, meaning a final decision may be years away.
The ruling has widespread implications for all companies paying overtime to their staff.
The government estimates that one-sixth of the 30.8 million people in work get paid overtime. This means around five million workers could be entitled to more holiday pay.
The coalition and business groups had argued strongly that overtime should not be included in holiday pay calculations.
If claims can be backdated, businesses stand to lose billions of pounds, some estimates suggest.
“Up until now some workers who are required to do overtime have been penalised for taking the time off they are entitled to,” said Howard Beckett of Unite.
“This ruling not only secures justice for our members who were short changed, but means employers have got to get their house in order.”
As an HR consultant one of the hot topics that my clients speak to me about time and time again is sickness absence. This is a big problem across the UK and creates a significant cost to businesses of all sizes. However the type of business that is most affected is one that is in the SME market. Small and medium sized businesses can ill afford the costs that sickness absence brings as they often have little flexibility. According to the latest CIPD research after the public sector and not for profit organisations, the manufacturing and production industry have the highest average of sick days at 6.2 days per year. The main cause of short term sickness absence is minor illness whilst long term absence is linked to heart problems, stroke and cancer. In this blog I discuss three ways to address sickness absence problems.
The first way to address sickness absence is to have a strict reporting procedure in place. There should be a clause in an employee’s contract that states that they should phone in to report sickness to their line manager within one hour of starting work followed by regular communication if the absence is to continue. It should be the employee themselves and not a relative, partner or anyone else. They should phone in and not text or email. The idea behind this is that if an employee knows they will have to speak to their line manager and may not be ill at all, but just seeking a day off, they may think twice about doing so.
The second way is to implement documented return to work interviews. These should be completed on the day the employee comes back to work. This may address the problem of sickness absence because the employee can be scrutinised by their line manager about the situation. If they have been swinging the lead they may appear edgy – body language is key. The interview should include welcoming the employee back, discussing the sickness absence in full – is the employee better now, is there any further treatment, etc. The line manager should then ensure the employee knows their first responsibility is to their employer now they are back at work and should be filled into what has happened with their work since they have been off,
The third way to address sickness absence is to monitor the situation – recording who has been off and why on a spreadsheet or in a human resource information system for a report to be produced. It can be very helpful and illuminating to see the information in black and white. Problematic members of staff can be highlighted and dealt with using a robust sickness absence procedure. Documented meetings will track how an organisation has dealt with an issue. This is really important if ultimately dismissal occurs with a potential employment tribunal claim lurking in the background. An employer needs to show they have been fair and reasonable.
From 1 October 2014 fathers and partners are entitled to take time off to attend ante natal appointments if they are in a “qualifying relationship” with a pregnant woman. This new statutory right will be unpaid. Employees and agency workers who are considered to be in a qualifying relationship include:
- a pregnant woman’s husband, partner or civil partner, i.e. if she’s in a same-sex relationship
- the father of the child
- the parent of the child; and
- intended parents in a surrogacy situation who meet specified conditions.
Employees may only attend two ante natal appointments and no more than a maximum of six and a half hours for each one. The appointment must have been made on the advice of a registered GP, midwife or nurse.
The employee will be required to confirm in writing their intentions to attend an ante natal appointment and include the following:
a) that the employee has a qualifying relationship with a pregnant woman or her
b) that the employee’s purpose in taking time off is to accompany a pregnant woman
to an ante-natal appointment;
c) that the appointment in question is made on the advice of a registered medical
practitioner, registered midwife or registered nurse; and
d) the date and time of the appointment.
The employer may not ask for proof in the form of an appointment card as that is the property of the expectant mother. The company may refuse the right to time off if not convenient. Employees do not need continuous service for this right, but agency workers need 12 weeks of the same kind of job to qualify.
The government has introduced this statutory requirement as research shows that less than one third of fathers take time off before the birth of their child and wish to encourage more involvement.
Companies have long eyed up competitors’ talent with a view to bringing them on board to increase their own competitiveness. However this activity is fraught with danger in terms of potential legal consequences. There are many dos and don’ts of staff poaching.
If a company has an eye on a competitor’s employee there are potential ways that they can be recruited. They could be approached direct, but another method could be to use a headhunter or executive search company. These are specialist recruitment agencies who will source management and top level jobs. They will act as a middleman seeking out and approaching key individuals putting distance between the employer and potential employee.
Having a professional network can help a company reach out to targetted individuals. The use of social media in recent years has done a great deal to enhance professional networks. Indeed the power of Linkedin has grown dramatically in recent years. It is said that anyone of use has 200 contacts within our circles and we are six steps away from contacting the person we would like to talk to. That is very powerful. Contacts in our network can come from many different sources – partners, family, friends, neighbours, clients, etc. The traditional old boys network has always worked rather well.
Employers should always beware of taking on competitor’s employees who have a restrictive covenant clause in their contract which may be pursuable in a court of law. The wording of such a clause is, of course, key.
For those employers that value their employees and fear them being poached by competitors there are key things to do in order to protect their interests.
Providing an interesting job is really important so that employees maintain job satisfaction along with career development opportunities is essential to meet career aspirations Succession planning will provide a career path that top performers can see and value acting as a retention tool. A comfortable work environment is also really important to encourage engagement. It goes without saying that financial reward should be right although non financial benefits are also important. Becoming an employer of choice is great to bamboozle the competition.
Having managed to recruit successfully a further way to protect themselves, a company should include a restrictive covenant or non-compete clause in a contract that includes details on the timescale that an employee may not work for a competitor and a banned geographical location. It is always good to draft something that would stand up in a court of law. It may not be viable if the restriction is not integral to the business’ survival.
If a company receives a letter of resignation from a valued member of staff who may have been poached consideration may be given to tactics of how that employee can be persuaded to stay. If they are valued, this is always worthwhile.