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Monthly Archives

December 2018

The legislation to protect agency and zero hours worker

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The legislation to protect agency and zero hours workers, introduced today, means staff must be informed of their rights from their first day of work, including eligibility for paid and sick leave. Workers must also be given the right to request predictable hours.

The reform takes forward a majority of the recommendations made in the Taylor Review of Modern Working Practices. This includes closing the ‘Swedish derogation’ loophole which allowed agency staff to be paid less than permanent employees.

Good Work Plan

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A series of proposed changes has been published by the Government with claims this could be the biggest reform of employment law in 20 years, following Matthew Taylor’s Good Work Review.
 
The key proposals are:

Aggravating Conduct – increasing the penalty for employer’s aggravating conduct from £5,000 to £20,000
 
Continuity of Employment – Increasing the one-week rule to break continuity, up to four weeks.

Contracts – workers will have the right to have written statement of terms and conditions to workers as well as employees.
 
Contracts – employer’s will be required to give written statement of terms and conditions on the first day of work (rather than within 8 weeks)

Employment Status Tests – streamlined avoiding employers misclassifying employees and workers as self-employed.

The Swedish Derogation – giving employers the ability to pay agency workers less than their own workers in certain circumstances is to be abolished.
 
Unlawful Deductions – banning employers making deductions from staff tips (presumably extending to the existing unlawful deduction laws)

New Parental Bereavement Provisions

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The Parental Bereavement (Leave and Pay) Bill became the Parental Bereavement (Leave and Pay) Act on 13 September 2018.

The Act states that from day one of employment,  two weeks’ unpaid leave will be an granted for employees who lose a child under the age of 18, or suffer a stillbirth from the 24th week of pregnancy.

The government is aiming for the new law to be in force in 2020, which will see employees being entitled to be paid at the statutory rate once they have completed 26 weeks’ service.

Employed or not employed – yet another battle of employment status…

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British track cyclist, Jess Varnish, is claiming wrongful dismissal, sex discrimination and detriment to a whistle-blower after being dropped from the Great Britain cycling team in 2016.

 

Varnish claims she was dropped by the team less than a month after speaking out against coaches for mistakes made in qualifying for the Rio Olympics.  An internal enquiry found that Shane Sutton, the then Technical Director told her to “go and have a baby” and an independent inquiry has accused Sutton of being complicit in a fear culture within British Cycling.

 

The first challenge for the 28-year-old is to convince the judge she was an employee, this will be assessed as the judge is provided evidence regarding the level of control exerted over her by UK Sport and British Cycling as a funded athlete.

 

Wider implications:

If accepted that athletes could be classed as employees this will mean athletes may be required to pay tax and British Sports funders will become liable for holiday, sick pay and pension contributions.

 

Watch this space…..

 

Depressed academic who was ‘sent to Coventry’ wins appeal

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The EAT overturned a tribunal decision after finding the original tribunal “erred in its approach” towards Professor Roya Sheikholeslami’s claim that her former employer – the University of Edinburgh’s school of engineering – discriminated against her because of her work-related stress and depression, and failed to make reasonable adjustments. While legal proceedings were ongoing, Sheikholeslami’s colleagues had been instructed not to contact her except through her solicitors as she was “in dispute” with the organisation, effectively meaning she was ostracised.

It’s almost New Year…

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It’s almost New Year so when you are wishing your employees a Happy New Year, why not put a ‘line in the sand’ and put the company rules and procedures in a memo covering any ‘niggles’ you may have had in 2018 eg. not following procedures for booking holidays or sickness, not following the dress code, unprofessional behaviour etc.  Then if these aren’t followed going further you will be in a good position to take action without someone saying “we’ve always done that”!

Office Banter

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‘Office Banter’ isn’t always what it seems to be!  Make sure it is not discriminatory or harassment, as if the person receiving the ‘banter’ or anyone else listening in are offended, then you may receive a claim!  If in doubt cut it out and make sure everyone knows what is expected and what will happen if that doesn’t happen.

Signed contract on file?

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In a recent case company Tenon FM was unable to enforce Post Termination Restrictions on its former employee Ms Susan Cawley.

 

Cawley started employment with the company in 2008 and until her resignation in 2018, was awarded a number of promotions.  At her time of leaving Cawley was an Operations Director.

 

Upon leaving it is alleged that Cawley attempted to persuade a former colleague to join her new employer, the alleged action led Tenon to seek an interim High Court injunction to enforce the post termination restrictions contained within her contract of employment.

 

Unable to produce a signed copy of the contract, Tenon failed to persuade the judge of the implied acceptance of contract (due to length of service).

 

“Deemed acceptance of contract” should always be followed up in writing but better still, issue contracts ahead of a start date and ask for a signed copy to be returned on the employees first day of work along with all other paperwork required by HR.

 

Advisors are often asked if an employer can take someone on for a “trial period” and then make a decision as to whether they issue a contract or not…

 

Generally, our stance is that the contracts afford the employer a host of benefits and provide expectations of the employee in writing.  Not forgetting that under the Employment Rights Act (1996) you are obliged to provide written information in a Statement of Main Terms within 8 weeks of an employee’s start date.

 

It is advised that all employees have contracts for day one, a probation period is in effect the trial period that you are seeking….

 

For specific advice, please call your Advisor!

Christmas Parties – are you ready?

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  1. Are your employees aware of what is required of them at the party eg. no fighting, drugs, damaging property etc?  If not give them a memo to make sure they are! (Elcons can help with this)
  2. What happens if your employee misbehaves at a Christmas party and you have paid for them to drink copious amounts of alcohol? Not a lot as you have exacerbated the behaviour!  Speak to Elcons to get some advice before preferably, but if it all goes wrong, definitely then!
  3. Do you have to look after your employees on their night out? Yes, you need to make sure they get home safely and are not treated detrimentally due to their sex, race etc as it is an ‘extension of the workplace’!
  4. Make sure your managers know that they shouldn’t agree to any pay rises, promotions etc while in the party swing as these may need to be agreed to in the cold light of day!
  5. What if your employees are abusive towards others during the party? You could discipline as it is an extension of the workplace, but it does depends on many factors.  Give Elcons a ring for some free advice!