NEWS & RAPPORT NEWSLETTER

RAPPORT APRIL 2012

DAFFODILS & EMPLOYMENT LAW

It’s April time and ‘up pop the daffodils’ along with our annual Employment Law changes.  This year, important amendments include those relating to tribunal procedures, unfair dismissal and statutory maternity and sick pay. Below, we report on just a few of the new laws – but please don’t hesitate to call us if you need to know more.

QUALIFYING PERIOD FOR UNFAIR DISMISSAL

Causing considerable interest, from 6 April 2012 the qualifying period for making an unfair dismissal claim increases from one to two years (with one or two exceptions, see below). This change applies only to employees who start their job on or after 6 April 2012.  The qualifying period for the right to receive a written statement of reasons for dismissal, on request, also increases from one to two years.  Note: Employers be careful. You will need to make a distinction between those who fall into this category and cases where there are exemptions. ie: Employee’s who transfer and have continuous employment under TUPE etc., where there is a gap in employment which affects the calculation for continuous service and/or where an employee provides services (such as consultancy) which can be argued constitute continuous employment.  Indeed, some dismissal rights do not need a qualification period ie: whistle-blowing or asserting a statutory right (such as the right to take time off to care for dependants), or where unlawful discrimination is alleged to have taken place.  These categories are protected.

Historic facts: over the past 40 years the qualifying period has risen and fallen with successive governments, dipping as low as six months under a Labour government in 1974 and as high as two years under a Conservative government in 1985 – when, incidentally, the rationale for a reversion to two years was also to encourage recruitment.  It fell back to one year under a Labour government in the late ’90′s, where it has remained for some time.  However, our present coalition government made a commitment many months ago in its ‘Employer’s Charter’ of 2010 and in the Chancellor’s Autumn statement of 2011, to change things with effect from 6th April 2012 in order to encourage the private sector to have confidence to recruit. 

DEFINITION OF INDEPENDENT ADVISER – RE COMPROMISE AGREEMENTS

This is most welcome news as far as we are concerned.  Section 147 of the Equality Act 2010 is amended from 6 April 2012 to confirm that an employee’s representative can be an “independent adviser” (ie: an HR Consultant) for the purpose of a compromise agreement. This deals with one of the conditions of a valid compromise agreement, which is that the employee will have received advice from ‘an independent adviser’ about the terms and effect of the agreement.  It is no longer essential that the independent adviser is an Employment Law Solicitor orUnion representative.

At HR & Diversity Management Limited we are set up to provide this service at a very competitive rate.  Please contact us for details.

EMPLOYMENT TRIBUNAL PROCEDURES – REFORMED

From 6 April 2012 witness expenses may be incurred. The maximum amounts of deposit and costs orders increases with the aim of reflecting more accurately, the costs to employers, of defending tribunal claims. In order to minimise the cost of tribunal proceedings to the taxpayer, tribunals have a new power to direct that the parties to a dispute are responsible for paying witnesses’ expenses. Also, Employment Judges may hear unfair dismissal cases alone. To speed up tribunal hearings, witness statements are taken “as read”.

STATUTORY MATERNITY, PATERNITY, ADOPTION AND SICK PAY STATS

From 1 April 2012 the weekly rate of statutory maternity, paternity and adoption pay increases from £128.73 to £135.45.

From 6 April 2012 the weekly rate of statutory sick pay also increases, from £81.60 to £85.85

From 6 April 2012 the lower earnings limit for primary Class 1 national insurance contributions increases from £102 to £107, the income tax personal allowance increases to £8,105, and the threshold at which employees pay the higher income tax rate of 40% is reduced to £34,371.

Other changes in Employment Law this month include the calculation of pensions and the auto-enrolment of eligible job holders into a qualifying workplace pension scheme and accident reporting procedures. Contact us for further details if you are interested. 

NEW STALKING LAWS – WILL ‘STALKING’ BECOME THE NEW GRIEVANCE BUZZ WORD?

Most of you will remember how much the introduction of The Protection from Harassment Act (introduced originally to help in stalking cases), influenced employee complaints.  Well, campaigners are proposing to bring about further changes in the statute books on stalking. The Protection from Harassment Act is no longer believed to be fit for purpose.  A new Bill will become law on 24 April, after which there will be a six-month period of consultation on training and sentencing guidelines. In November 2012 the new law will become operational.  The campaign to bring about this change in law started just over a year ago by Protection Against Stalking (PAS) andNapo, the probation and family court union.  The two organisations first met at an Association of Chief Police Officers meeting, which was reviewing stalking and harassment law and training. It was clear that the law was inadequate.  It was evident, too, that existing legislation (passed in 1997; the Protection from Harassment Act) was no longer fit for purpose. So, a decision was taken to raise awareness inWestminster.  We all know just how The Harassment Act has affected workplace cases – so just how will this new law affect employers?  More news to follow.

TRIBUNAL RUNS OUT OF FUNDS

Cases due to be heard at London(East) Tribunal in the next couple of weeks may run into trouble. Letters have been sent out saying it has “reached the full extent of the budget allocation for this financial year and, as a result, there is no remaining judicial resource available to hear your case.” The future is unclear as to how long hearings will be disrupted. All this in a year we are paying £11bn for the Olympics?!

s.26 OF THE EQUALITY ACT 2010

Did you know, an employee who witnesses racial harassment of a colleague may also experience harassment “related to” race within the meaning of s.26 of the Act. This puts us in mind of the Sexual Harassment laws!  The definition of harassment set out in s.26 of the Equality Act 2010 means that the unwanted conduct in question does not have to be directed at the complainant. Most of us appreciate that it is the responsibility of the employer to make all employees aware of reporting policies & procedures (how long have we been going on about the role of the bystander), in respect of allegations of bullying or harassment in the workplace. Failure to provide and communicate an adequate grievance procedure could lead to grounds for a claim against the employer. Further, any employee who brings in good faith a complaint of discrimination should not, under any circumstances, be subjected to a detriment for doing so.

RAPPORT JANUARY 2012

MANAGING ABSENCE DURING THE OLYMPICS : July 2012

Written by Joanne White of  Linder Myers Solicitors. Generally speaking, employees will fall into one of the following categories. Those who plan to:- take time off during the Olympic Games to act as a volunteer – confirmation to successful applicants has yet to be announced, take time off because they have bought tickets for certain events, take time off for a reason unconnected with the Olympic Games but who feel that people who have a connection with the Olympics are being treated more favourably.   The main issue you face as an employer is likely to be managing attendance. If you know this is likely to be an issue in the summer, you should start discussing it with your staff now. 

HOLIDAY POLICY : If you already have a holiday policy in place, you may wish to keep things simple and follow that policy. This is likely to include a rule that time off will be granted on a “first come first served” basis. Whilst this approach is totally acceptable, you may need to deal with employees who have bought tickets for events before booking holiday. Depending on what your holiday policy says, this may be a case of “unauthorised absence” if the employee takes the time off without authority and so you may wish to establish early on, if you have any employees who fall into this category.

FLEXIBLE WORKING : A less formal approach may be to apply a flexible working policy for the duration of the Olympics. This is more likely to be applicable to those employees who do not want to take a lot of time off but who may wish to watch a particular event on certain days during normal working hours. Whether or not this will work will obviously depend on the structure and needs of your business but it is a useful way to maintaining good morale within the workforce.

PERFORMANCE ISSUES : You may experience problems with staff watching lengthy coverage of the Olympic Games on their computers during normal working hours or failing to turn up for their shift following attendance at the Olympic Games or watching it on TV at home. You may wish to consider planning for popular sporting events in advance – perhaps give staff access to a TV during agreed times, provided they make up that time later on in the day/week etc. However, ultimately, there is no legal right to take time off to watch or volunteer at the Olympics and so performance issues should be dealt with under your normal disciplinary procedure. It is advisable to warn staff of this in advance of the start of the Olympics.

ALLEGATIONS OF WORKPLACE BULLYING WITHIN THE POLICE – Jan 2012

On 27^th January 2012 Christine Pratt spoke on BBC York radio at 0845am about allegations of workplace bullying within the Police.  Why is this happening?  Exactly what support is there?  We believe the ongoing lack of funds and resources is impacting on the workplace right across the country.  Whatever business you work in, whatever your line of work, where there is a lack of funds and resources you are likely to find inappropriate levels of line-management skills. This presents significant risk to the business.  Look for the three ‘highs’.  High stress levels, high levels of absence and increasingly high turnover of staff – as these three result in low morale and poor productivity levels.  In summary, loss of competitive edge!  The business, whether public or private sector, will fail to deliver.  Private firms go out of business and public sector departments face extreme criticism – at the very least.

90% of managers admit they do not have skills to manage staff. Do they feel supported?  No.  80%+ of cases we get involved in are Public Sector, mostly emergency services; NHS, Police, County Council’s and Education (ie: teachers) and in all these sectors managers struggle with basic line management and leadership skills.  The workforce lack diversity awareness and little or no training takes place in this area.  Policies and procedures are either misunderstood or disregarded.  How many times have you had an employee who has said; “I didn’t know there was a grievance process?”.  Or a line manager who says; “I didn’t know how to tackle the problem”.  Does this sound familiar?  If it does and/or if you are worried about conflict within area’s of your business, call us for a free consultation.   What have you got to lose?  

WILL THE 2 YEAR QUALIFYING PERIOD MAKE A DIFFERENCE.

The 2year service qualification period will only apply to those engaged after 6 April 2012.  Will this make a difference to the way organisations treat staff?  We don’t think so.  You get good and bad employers and that will remain the case probably. Some say ‘the rogue employer’ will benefit – using this reversal of employment legislation an excuse to dismiss staff without following procedures.  Here’s what we think.

Simply, one year or two, what does it really matter?  This may seem harsh but the fundamental aspects of managing people remains the same, in our view. Middle management struggle most, it seems.  Indeed, as we have said above, 90% of middle managers admit they do not have the right skills and/or tools to manage staff.  They know this!  This category of line manager will continue to need far more support at ‘line managing’ conduct and capability issues – as well as the recruitment process itself.   So, whether you are a rogue employer or a good employer will depend on how much emphasis you give to the importance of addressing business risk and managing your staff – at all levels in your business.

RECRUITMENT & LIES IN CV’s.

We presently have a huge hang-up about CV’s and recruitment agencies (having a client who has had fingers badly burnt by a person who failed to declare a criminal conviction).  Don’t rely on the Recruitment Agency to do the reference checking.  We know that a Recruitment Agency will ‘wriggle’ and go into ‘self preservation mode’ where problems occur as a result of a sloppy references and CRB checking processes – which is extremely disappointing.  The Recruitment, Reference checking, Induction, Probation period, Performance managing processes etc., all go hand-in-hand and need to be shown the respect and management time/attention it deserves.

If a reference from a new starter looks suspicious – make a phone call, check it out.  If a reference is produced by the new starter personally, verify it.  If you are having problems with an employee who has been with you for a relatively short period (less than two years), dig out their personnel file and check their references and career history.  A problem employee is likely (not always of course) to have a history.  Assume nothing!  Ensure the Induction process is completed.  Conduct an ‘end of probation period’ review meeting and identify areas where support and/or improvement is required.  Document this.  Take action where necessary.  From this point on, manage performance regularly and document the process.  Address conduct and capability issues and know when and how to separate the two.  No matter how capable or skilled a person is – they do not have a right to treat colleagues with disrespect.  Separate Conduct and Capability!   If you are a business owner, ensure your supervisors, team leaders and middle management receive the tools, training and support they need.  If you observe them struggling with their tasks, step in and offer appropriate support. Do not resist seeking external expertise where necessary.  Personally, I would go to a doctor or dentist if I needed their skills – I would not try to do it for myself.  So, apply this common sense approach to employment law and conflict resolution.  If you notice a change in absence or turnover statistics – or you are aware of conflict within a team or department, do not hesitate to call in an independent expert for advice.  Do not try to keep the cost down by tackling it ‘in-house’.  That is a false economy and could make matters worse. 

• Call us for a free consultation if you find yourself in this position.
• It’s not rocket science.
• It ensures your line managers are left free to get on with their work.
• You will be able to sleep at night knowing that you are addressing all area’s of risk to the business.

FEE TO LODGE A TRIBUNAL APPLICATION : October 2011

From April 2013 a fee will be charged to claimaints bringing a Tribunal claim. There will be a refund for any individual who wins their case.  Consultation will commence from November 2011 about the amount and method of charging.  The following fee structure is proposed;
• upfront fee of £250 when lodging ET1;
• further fee of £1,000 payable by Claimant when the hearing is listed;
• higher fees if the claim is for over £30,000;
• fee to be refunded if Claimant wins, and forfeited if they lose
• fees to be waived for those with no money

If the test for a fee-waiver is simply being on income support, then most ex-employees will automatically qualify for the waiver (but those still in a job will not). Note that the issue fee of £250 (and hearing fee of £1,000) is substantially greater than the small claims issue fee.

See the Employment Tribunal stats for the past year on our statistics page.

There is currently no fee for an applicant who wants to make an employment tribunal claim. The low-paid, or those without an income, may also have the fee waived or reduced at the start of the process, under the new scheme. “We respect the right of those who spent their whole lives building up a business, not to see that achievement destroyed by a vexatious appeal to an employment tribunal. So we are now going to make it much less risky for businesses to hire people” Chancellor George Osborne said. Under Mr Osborne’s plan, workers will still be able to take action immediately if they suffer discrimination, but by reducing the risk of tribunals for unfair dismissals the government hopes bosses will feel more confident about hiring people.

1. The GMB Union criticise the plan.
2. The TUC General Secretary, Brendan Barber, criticises the plan and claims this is a “charter for bad bosses”
3. Business Leaders generally oppose the plan and call for broader consultation
4. The CBI welcomes the proposal (see below)
5. Employment Law Solicitors voice differing views and point out both the advantages and disadvantages. 

The CBI Director General says;  “We have been urging the government to do everything it can to make it easier for firms to grow and create jobs, and this will give employers, especially smaller ones, more confidence to hire”   Solicitor, Martin Edwards of  Messrs Weightmans, urges caution and states: “The changes may have mixed results. Someone who has not worked long enough to claim unfair dismissal may claim they are a whistleblower or a victim of discrimination instead, causing employers even more hassle than before”. 

COMMENTS / DEBATES VIA LINKEDIN

• The fee structure is highly regressive and will affect low income Claimant disproportionately, acting as a barrier.
• The payment of an initial fee of £250 will be closely followed by a demand for a further fee of £1,000, even before the ET3 has been lodged. This will, in my view, be enormously unfair to all but the wealthiest claimants.
• Would like to see the introduction of a deposit/fee which is linked to the compensation sought by the Claimant e.g. 2.5%. To give this proposal some perspective, the average unfair dismissal award is around £9k and therefore the deposit/fee would be £225.
• Most people who apply to Tribunals are out of work, having been dismissed, so any fee on issuing a claim would act as an disproportionate deterrent
• Low paid workers would also suffer disproportionately in the event of a fixed fee structure being introduced.
• There  will be a cost involved in collecting and banking any fee so that hard cost needs to be factored in. What happens to the interest.

End