Changes to Worker and Employee Contracts – 6 April 2020

From 6 April 2020 there will be a right to a basic written contract written as a section one statement that applies to workers and employees alike. This is in accordance with the Employment Rights (Employment Particulars and Employed Annual Leave) (Amendment) Regulations 2018. Up to this point employees have the right to receive written terms and conditions within eight weeks of starting employment and workers may not have received any employment documentation at all.

The right to a basic written contract takes effect from day one of employment so ideally should be issued before employment starts. Genuine self employed contractors are not included. Agency workers will receive their documentation from the employment business that is contracting them to work with a third party employer.

A basic written contract as a section one statement should include the following as a minimum:

The names of the employer and employee
The date the employment starts and period of continuous employment
Details regarding probation period – duration and conditions
Pay (or method of calculating it) and interval of payment
Details of any additional remuneration eg bonus, commission
Hours of work (including if fixed or variable; if varied how)
Days of the week required to work (including if fixed or variable; if varied how)
Holiday entitlement and pay
The employee’s job title or a brief description of the work
Notice periods
Place of work
Details on sick pay and leave
Entitlement to additional pay ie maternity pay, paternity pay
Details regarding training entitlement including if mandatory and if the worker/employee must pay for this

The law provides that the issuing of certain other additional terms may be given within two months of beginning employment. This may be in the form of a supplementary statement sent to the worker or employee. In the alternative they may be signposted as to where they can find this documentation eg on an intranet or via a request to HR. This includes information on:

Pension and pension schemes
Collective agreements
Information on grievance and disciplinary procedures

However, it might be good practice to share that information via the issuing of just one document.

With this new legislation holiday pay for workers will be referenced via 52 week period rather than the current 12 week period.

If any of the information changes the employer must notify the worker/employee within one month. Revised contracts/statements do not need to be provided to the worker/employee automatically. However, if one is requested this must be provided within one month of the request.

Employers should review their existing processes to ensure they comply with the law.

Parental Bereavement (Leave and Pay) Act

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.

Pet Death and the Workplace

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 – Contractor Tax Rules

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.

Tips to Assist You with GDPR Compliance

Implementation of the GDPR (General Data Protection Regulation) is looming as 25 May 2018, the deadline date, will soon be here. The GDPR is one of the biggest shake ups of data protection legislation for thirty years when the Data Protection Act 1998 came in. In order to protect personal data the law requires all organisations to tighten up on how they handle this from acquisition to destruction. In this article I provide tips to assist you with GDPR compliance.

1. Identify the data controller in your organisation. This should be a senior member of staff and is usually the Managing Director in a small company or with a larger organisation this can be either the Managing Director or a board member. The ICO (Information Commissioner) will need to be notified.

2. Consider appointing a Data Protection Officer. This person should deal with day to day data protection issues and be the company “fount of all knowledge” and the go to person for personal data issues. With a small company this role could be incorporated part time in an existing role. The Data Protection Officer role needs to know everything there is to know about data protection in order to give advice to colleagues. With a larger company the role could be recruited to or even appoint a consultant with data protection knowledge.

3. In order to comply with the GDPR it is essential to undertake a data protection audit as soon as possible. This could be coordinated by a project team from within the organisation or commission a consultant to undertake this potentially time-consuming task followed by the drafting of a report to highlight compliance gaps.

4. Having identified the compliance gaps gather together all the essential documentation that may be needed to comply with the law. Paperwork could include a data register, an asset register, asset management policy, updated IT policy, privacy notice, data protection officer job description, etc.

5. Review all existing documentation to see if it would stand up to scrutiny if there were a challenge to the integrity of processes. Changes may need to be made to employment contracts and staff handbooks for example.

Gender Pay Gap – The Tender Trap

With the recent high profile resignation of female BBC reporter Carrie Gracie the introduction of gender pay gap reporting highlights the tender trap that many organisations can find themselves in. The Equalities Commission is now going to look into Ms Gracie’s claims that two international reporters doing the same job as her were paid more than 50% than her.

Gender pay gap reporting introduced by the government in April 2017 requires that organisations who employ more than 250 staff are required to publish the pay gaps between men and women by April 2018 on an ongoing basis. The BBC have argued that they undertook an audit and considered there wasn’t a problem. However at least 150 women employed by the BBC don’t agree and are silently backing Miss Gracie’s very public outcry. She is so incensed that she has resigned. An inability of an organisation to produce the figures will have the public speculating as to the reasons why. Those who do publish damning figures may face damage to reputation and an inability to recruit. Pay is such an emotive issue and everyone wants to know that they receive a fair day’s pay for a fair day’s work. If women do the same job as men or the job is of equal value they should be paid the same. A job evaluation process could highlight the gaps which will then need plugging.

Despite almost fifty years of sex discrimination legislation in the UK the gap between men and women’s pay still exists. Men are paid on average 10% more than women, women are employed in the lowest earning sectors in the UK and are given bonus’s at least 5% less than men. See more about this on the ACAS website http://www.acas.org.uk/index.aspx?articleid=5768. It appears to still be a man’s world as they say.

HR trends for 2018

Now the excitement of the Christmas and New Year festivities has faded it’s time to get down to business and look ahead to identify the HR trends for 2018.

One major trend is the increasing need to focus on data protection. In May 2018 there will be major shake up of data protection laws which have existed in the UK since 1984 designed to protect employees and consumers in how their personal information is held and managed by organisations. Organisations will need to undertake an audit of data protection procedures across departments to ensure personal information is handled in accordance with the new laws. An audit should methodically identify what data is held and why, who manages the data, what procedures are followed,and what needs to be altered to ensure compliance with the law. Subject access requests must now be handled within one month and without charging a fee. Employees and potential new employees must be informed as to the exact reasons why their personal data will be processed. Organisations need to draw up a privacy notice that should indicate what and how personal information will be managed. To be honest data protection isn’t the most exciting area of HR but unfortunately if companies don’t comply the consequences could be huge fines. To find out more there is a wealth of information on the Information Commission website https://ico.org.uk/

Following the success of Unison in the Supreme Court in July 2017 employment tribunal fees have been abolished. The fees were introduced in July 2013 and meant that if an employee wanted to take their employer to an employment tribunal for unfair dismissal they had to find £1200 which is a hefty sum if you have just lost your job. The Supreme Court decided that the fees were unfair and were a barrier to justice. Anyone who paid employment tribunal fees since 2013 is entitled to apply for a refund.

The statistics from 2013 – https://www.gov.uk/government/collections/tribunals-statistics – showed a dramatic reduction in the number of employment tribunal claims being lodged which was the main intention of the Conservative government. Since the abolition of the fees there has been a noticeable increase in the number of claims being lodged although at the moment they have not reached anywhere near the level in 2013 before the fee introduction. However, give it time. There remain a lot of unscrupulous employers out there who fail to treat their employees well. It now costs nothing to lodge a claim so during 2018 we could well see the trend in the number of claims rising.

The latest unemployment figures show the rate is 4.6% which means there is very little wriggle room for employers to find new staff. The skills shortage and therefore this trend in the UK will continue and may get worse. This is a phenomenon that has been around for quite a while in the UK with many industry sectors suffering and competing for staff. The skills shortage may get worse in some industry sectors with Brexit causing an impetus of skilled staff returning to their homes elsewhere in Europe.

What HR needs to know about the GDPR

On 25 May 2018 the General Data Protection Regulation (GDPR) comes into force and will replace the Data Protection Act 1998. It is designed to give tighter security to personal information. Data controllers and data processers are responsible for ensuring personal data is held securely. For organisations that breach the GDPR the fines are potentially huge – potentially running into millions of pounds – a fine of up to £10 million or 2% of turnover. The data controller carries the heaviest burden whilst data processors need to ensure that data is held confidentially and compliantly and security problems are addressed.

There are six processing principles – lawfulness, purpose limitation, data minimisation, accuracy, storage limitation, integrity/confidentiality.

So how can HR prepare an organisation for this onerous responsibility?

The first step would be to undertake a data protection audit. Depending on the size of the organisation it might be a good idea to create a project team from across different departments. For smaller organisations a team of at least two is ideal. The audit will then need to identify the data tjat is collected along with the purpose, identify the legal basis you are seeking to rely on, review data collection, storage, retrieval and record keeping, review service providers and data processors (including third party outsourced partners) and analyse risk from any compliance gaps. The organisation should then update or implement relevant HR policies such as data protection, recruitment, IT, disciplinary, whistleblowing, data subject access requests and privacy notices.

As many private sector organisations may not currently have a privacy notice in place it is essential to develop one that give information to employees on what and how their data will be processed. the privacy notice needs to also detail their rights and obligations clearly identify the Data Controller (usually the CEO) and what to do in the event of discovering a data protection breach. A detailed privacy notice could be issued along with an employment contract or become part of a staff handbook.

Given the seriousness of this forthcoming law and the implications for non-compliance, it might be a good idea to implement training in GDPR across the workforce.

If you would like assistance with a GDPR audit and GDPR toolkit then we can help. Give us a call on 07762 771290.

Employment Tribunal Fees Unlawful

Breaking news today from the Supreme Court, who have decided that employment tribunal fees introduced in July 2013 are unlawful as they prevented access to justice and breached UK and EU law.

The case was taken to the Supreme Court ultimately by Unison who have fought this long and hard, but now successful battle. Many of the employees who have paid fees to take their employer to tribunal will now need to be refunded. The government will have to now pay out a whopping £27 million. Before July 2013 employees could take their employer to a tribunal without charge, but this changed in 2013 when fees topping £1200 were introduced for claims related to unfair dismissal and discrimination. This has lead to a dramatic decrease in the number of claims being lodged – 78% in three years. The reduction has probably been due to a lack of affordability by many employees unable to do anything about any potential unfair illegal treatment at work. If someone was unfairly dismissed they would more than likely not have the funds to take a claim having lost their job and income. This would be particularly relevant to employees with a with low or middle income.

Time will tell how the government will tackle the need to make changes. Whilst the Supreme Court has indicated employment tribunals should be free, tribunal fees may not be completely abolished but may perhaps be vastly reduced. The government will probably organise a consultation exercise before implementing any changes to fees.

In July 2013 the government introduced a mandatory one month ACAS conciliation period which has helped to resolve approximately 90% of cases without going to an employment tribunal. This process will probably still be retained as it appears to have been very successful in helping to reduce the thousands and thousands of claims that used to swamp the employment tribunal system.

Nevertheless, it seems that this barrier to justice will now be removed so law-breaking employers should beware.

Employment Tribunal Statistics – July to September 2016

The latest employment tribunal statistics – July to September 2016 – show a marginal increase of 2% in single claims compared to the same period in 2015 whilst there has been an increase of 45% for multiple claims for the same period. A multiple claim is one that contains multiple claimants on the same form.

The employment tribunal statistics show that the average time to dispose of a single claim was 26 weeks, but 205 weeks for a multiple claim.

4,300 single claims were received during July to September 2016 with 27,200 multiple claims and over 5,245 applications were made for remission of the issue fee which can range from £160 to £250. 4,623 claims received either full or partial remission. A fee remission can be applied for where a claimant does not have a certain level of savings in the bank and/or is on a low income or income support. A separate fee remission application must be submitted. Fewer applications were made for remission of the hearing fee which can range from £230 to £950.

The full statistical analysis can be viewed here.

A fee remission application form can be found here

Guide on applying for fee remission here