robbryanassociates

Archive for the ‘contracts’ Category

Government to extend the scope of exclusivity ban

In contracts, Employment law, Equality, government, pay, workers on June 20, 2022 at 10:58 am

An exclusivity clause within a contract prevents a worker from being free to take other work or work for another employer whilst being on standby awaiting work.

Back in 2015, the government looked at restrictive practices used by some employers using zero-hour contracts. For a zero-hours contract “exclusivity clauses” are already banned and unenforceable.

The government has now announced that any exclusivity restrictions placed upon workers whose earnings are below or equivalent to the lower earnings limit (currently £123 per week) will also be banned. Clearly, there is scope for this band to be widened in the future. No date has yet been set for implementation however the legislation will also give workers protection from unfair dismissal and the right not to be subjected to detriment for failing to comply with an exclusivity clause. There is also a right to claim compensation.

Action point:

There isn’t yet a date for when the change will come into force but it is due in Parliament later in 2022. Employers can prepare by:

  • reviewing employment contracts and amending any exclusivity clauses to apply only to those earning above the LEL
  • Work out the weekly earnings for employees so that you are aware who the rules apply to
  • Update policies and procedures e.g. employers can still require staff to tell them that they have additional employment even if exclusivity cannot be enforced
  • Check total working hours – to comply with Working Time Regulations, those working more than 48 hours per week across all employment need to sign an opt-out agreement
  • Consider if a restrictive covenant is necessary e.g. employees who want to work for a competitor or if there is confidential/sensitive information at risk.

If you would like to know more about this topic contact Rob Bryan Associates – 01462 732444 / rob@robertbryan.co.uk

The Flexible Working Headache for Small Businesses

In business principles, contracts, covid-19, Flexible Working on May 3, 2022 at 8:50 am

This week news emerged of Jacob Rees-Mogg demanding civil servants return to the workplace (about 44% had already done so). The FT (17 Feb) and Standard (17 March) reported London occupancy rates at their highest level of return.

JP Morgan, after stating that home working was “an unwelcomed distraction”, has now relaxed its return policy following pushback from staff. 

A Bloomberg report this week headlined “Workers are winning the battle” when it comes to returning.

I believe for small business owners – this is a perfect illustration of when NOT to follow Large Co models and trending news.

Your business will have key essential functions and tasks that need to be done well, consistently, and in a productive and profitable way. ANYTHING that gets in the way of that should be repelled. 

Why? Because if you operate against that first principle, however well-meaning, the outcome may not help your business.

There is no single solution. Not all job roles are the same.

What’s needed:

  • Talking with individuals 
  • Aligning joint expectations
  • Refocusing on PPP (post pandemic priorities)
  • Naming where you are – about to reorganise, in a transition stage or fixing a new game plan.

You are busy, there will be many pressures on YOUR TIME and ENERGY

BUT

If you haven’t currently nailed this – you could be facing huge friction:

  • Your profitability, 
  • Strained working relationships and
  • Inevitably, a personal headache.

NEXT STEP…. Book in those discussions with your team, (or get your managers to do this for you). Clarity will pay dividends.

Rob Bryan

Repeal of vaccination as a condition of employment

In business principles, contracts, covid-19, Employment law, government, health and safety, Uncategorized on March 7, 2022 at 1:29 pm

The Government is proceeding with revoking vaccination as a condition of deployment (VCOD) in all health and social care settings.

The regulations revoking VCOD in all health and social care settings will come into force on 15 March 2022.

The Government is still strongly encouraging social care staff to take the vaccine.

The operational guidance, Covid-19 Vaccination of People Working or Deployed in Care Homes applies to regulated activity in a care home, i.e., the provision of accommodation together with nursing or personal care, and all professionals and tradespeople who enter these settings, now reflects this decision.

The Government’s response stated: “In light of this latest scientific evidence and having considered the views received as part of the consultation, as well as an analysis of equalities impacts the Government will bring forward regulations to revoke vaccination as a condition of deployment.

“The regulations will revoke the requirements that CQC registered persons only permit those who are vaccinated against Covid-19, unless otherwise exempt, to be deployed for the provision of a CQC-regulated activity in health and/or social care, and to enter CQC registered care home premises.”

Spring Newsletter 2022

In business principles, contracts, Employment law, government, health and safety, holiday, pay, Uncategorized, workers on February 28, 2022 at 11:04 am

Our latest newsletter brings you news and views from our HR experts on:

  • The Employment Bill
  • Setting Business Goals
  • Employment Status
  • Right to Work Checks
  • The Jubilee Bank Holiday
  • Updates to national insurance and statutory rates
  • Recent cases of interest

Join our mailing list

The Employment Bill

In business principles, contracts, Employment law, Equality, government, pay, workers on February 16, 2022 at 1:05 pm
gavel with keyboard in background. Text read 2022

The Government first proposed an Employment Bill in 2019.  However, it has not yet progressed; this may occur in 2022. The following changes are expected to be included in the Bill: 

  • A new single enforcement body to enforce breaches in relation to national minimum wage, modern slavery, employment agencies, statutory sick pay and holiday pay for vulnerable workers. It will have new powers to tackle non-compliance, including civil penalties of up to 20,000 GBP per worker for the breaches under the Gangmasters Licensing and Employment Agency Standards regimes.   
  • Workers to receive their tips in full.  The government announced in September 2021 that the new legislation, which will be supported by a code of practice on fair and transparent distribution of gratuities, will require all employers to pass on tips without any deductions.  
  • A new right for workers (including those on zero hours contracts and agency workers) to request a more predictable contract after 26 weeks’ continuous service.  This is intended to provide more certainty about the number of hours or days they will be required to work. 
  • Extending redundancy protections for pregnant workers and those on maternity leave and other forms of family leave by extending the period of protection to apply from the point the employee informs the employer that the employee is pregnant to six months after the end of the family leave period.
  • A new right to additional neonatal leave which would grant parents of babies who are born prematurely or who are admitted to hospital in their first four weeks to up to 12 weeks’ paid time off (one week of leave for each week spent in neonatal care).
  • A new right to one week’s unpaid leave for unpaid carers.  According to the government’s consultation published in September 2021, this will be a day one right for all workers which can be taken as a block of one week or as individual days, taken for caring purposes such as personal and practical support, financial matters, personal or medical care. 
  • Making the right to request flexible working arrangements a day one right by removing the requirement to have 26 weeks’ service before a request can be made. 

The government has previously announced it will place a duty on employers to prevent discrimination in the workplace and will reintroduce protections for employees who suffer discrimination or are harassed by customers and clients.  

Whilst the above is not an exhaustive list, it should help you to remain aware of the key HR topics that will impact employment this year. We will be providing more details on these topics together with the changes that will be required for contracts and handbooks.  

Recent Cases of Interest: Spring 2022

In business principles, contracts, Employment law, Equality, pay on February 16, 2022 at 1:05 pm

Worker allowed to claim back pay for untaken annual leave 

In yet another case involving Pimlico Plumbers, the Court of Appeal has overturned a previous judgement from the Employment Appeal Tribunal and ruled that workers can only lose the right to roll over paid statutory holiday if their employer has been open about their entitlement and encouraged them to take the holiday.  

This case was brought by a worker by the name of Gary Smith who started working for Pimlico Plumbers in 2005. From the outset, Pimlico Plumbers maintained that Smith was a self-employed contractor and was therefore not entitled to paid holiday. Smith initially accepted this situation and decided to take periods of unpaid leave throughout his time with the firm.  

However, in 2011 Smith raised a claim with the Employment Tribunal arguing that he was at least a worker, which would have entitled him to paid holiday, and he sought to claim back pay for the periods of unpaid leave he had taken.  

Smith’s claim eventually went all the way to the Supreme Court which ruled that he was indeed a worker and was therefore entitled to paid holiday. The case was then referred back to the Employment Tribunal who decided that Smith’s claims for unpaid leave were out of time. This judgement was then appealed and the Employment Appeal Tribunal upheld the decision saying that Smith could not claim for leave that was taken but unpaid, only for unpaid leave not taken.  

Finally, the Court of Appeal found that not only was Smith “denied the opportunity to exercise the right to paid annual leave” but he was also entitled to claim back pay for the unpaid leave he had taken. 

RBA comment: 

The Smith case highlights the importance of clearly establishing the employment relationship between workers and the employer. The employer in Pimlico attempted to have control over the workers without the liabilities associated with employment. The working practice was very different from the contract wording. The plumbers were powerless to negotiate terms with employment rights. 

The employment status was determined by the courts. Smith was not an employee but being a worker was sufficient for him to have the rights under the working time directive and this included paid holiday. Paid holiday at the minimum rate 5.6 weeks per year equates to 12.07% of pay.  

The court of appeal had to consider if Smith had lost his right to take holiday due to a time limit. The CA decided that it was impossible to lose a right to holiday pay if you didn’t know you had it! 

In the video below Rob explains the difference in employment status and how that applies for your business:

View Video

Pilot dismissed after claims he slept during a flight 

In the case of Lawson v Virgin Atlantic Airways, the airline admitted to the tribunal from the outset that the dismissal had been unfair due to the procedure that was followed. However, they also maintained that there were capability issues with Lawson. 

Lawson commenced employment with Virgin in 1998, and throughout his employment he had passed many simulator and other flying tests. He had regularly flown long-haul flights on which there were 3 pilots, a captain and two flight officers. During such flights, the pilots took it in turns to take rest periods, with two of them remaining on the flight deck at any one time. 

During an 11-hour flight to Hong Kong in 2015, difficulties arose because Captain Lawson’s two flight officers became ill. Rather than making an unscheduled landing somewhere in Russia, he decided to continue flying alone to his destination, where he successfully landed the aircraft. 

An internal investigation subsequently took place into Lawson’s actions during which he was interviewed and said he felt shocked to be asked whether he had taken 40 winks during the flight. The final investigation report made no formal criticism of his handling of the flight and at a later debrief meeting he was not told he had done anything wrong, so he continued flying. 

However, some months after this, Lawson failed two further flight simulation tests. After failing the first test he was removed from active operations and was given one day’s training before completing the second test, which he also failed. 

A formal training review was then set up, but Lawson was informed by his internal staff association that if he attended the review meeting he would be dismissed. They also advised him that his options were either for him to resign and they would negotiate a severance package for him, or he could take the matter to an employment tribunal. The staff association then started to negotiate a leaving package with the airline. 

Shortly after this Lawson was signed off ill and was off work for almost a year. During this time, he had not been informed of the outcome of the training review and neither had there been any discussion with the company about a possible return to work. Lawson therefore sought advice from the Professional Pilots Union who advised him to lodge a formal grievance over the matter. 

On the same day that he lodged his written grievance, he received a letter from the HR department inviting him to a meeting to discuss the outcome of the training review. Lawson subsequently attended the meeting during which the report was read out and concluded that to provide him with further training would be unlikely to achieve success. Virgin then offered Lawson a settlement package which he turned down. 

Following this meeting, Lawson received a letter confirming that he had been dismissed. He appealed against his dismissal and whilst both his appeal and grievance hearings were held, both were rejected. 

At the Employment Tribunal, the airline put forward the case that there had been concerns about Lawson’s performance over a long period of time, although there was no documentary evidence to support these claims. The tribunal therefore ruled that the dismissal was “substantively unfair, as well as (as admitted) procedurally unfair”. Although Lawson was seeking reinstatement, instead they awarded him £90,312 by way of compensation.  

RBA comment: 

This case once again demonstrates the need for employers to follow a fair and transparent procedure when addressing performance issues. Failure to follow such a procedure is likely to render any dismissal unfair, irrespective of the nature or severity of the conduct or performance being dealt with. Reviews should be documented and shared promptly with any shortcomings identified. Training needs should be explained and properly supported. 


Employee dismissed for raising frivolous grievances 

In the case of Hope v British Medical Association, the issue was whether the employer had acted reasonably in summarily dismissing the employee because of what they considered was his repeated misuse of their grievance procedure. 

Hope had raised a number of grievances, some of which were minor complaints about managers and others were about the responses he received to his grievances. He refused to escalate the grievances to the formal stages of the procedure, but at the same time would not withdraw them. He was warned that if his behaviour persisted, he may face disciplinary proceedings and again he complained that such action amounted to an abuse of procedure. 

In an effort to resolve the situation, a formal grievance hearing was arranged but Hope declined to attend. The BMA therefore decided to go ahead with the hearing in his absence and it was determined that his complaints were frivolous and vexatious. Furthermore, it was concluded that his refusal to attend the meeting was an abuse of process and disciplinary proceedings were therefore subsequently initiated.  

Following the disciplinary hearing, it was decided that Hope’s behaviour constituted gross misconduct and he was summarily dismissed. Hope later raised a claim with the Employment Tribunal that he had been unfairly dismissed. 

The Employment Tribunal found that the BMA had acted reasonably in the circumstances and that Hope’s dismissal had been fair. They concluded that his numerous grievances had been frivolous and vexatious, he had refused to deal with these complaints in accordance with the recognised grievance policy, and that he had refused to comply with a reasonable management instruction to attend the hearing itself. As a result, his behaviour had led to a fundamental breakdown in the working relationship. 

Hope appealed against the decision on the basis that the tribunal had failed to consider whether his conduct had constituted gross misconduct. The Employment Appeal Tribunal dismissed Hope’s appeal on the basis that they considered the BMA had acted reasonably in all the circumstances.  

RBA comment:   

This decision demonstrates that an employer is entitled to take action against an employee who behaves in a way that abuses the grievance procedure and, through doing so, seriously damages the working relationship. However, under normal circumstances, employers need to be wary of initiating disciplinary proceedings against an employee who has raised a complaint, particularly any complaint which could be a public interest disclosure. 

Queen’s Platinum Jubilee Holiday

In business principles, contracts, holiday, Uncategorized on February 16, 2022 at 1:04 pm

Employers are reminded that this year’s usual late May bank holiday has been moved forward to Thursday 3 June; and that an additional day has been designated a bank holiday on Friday 4 June, thus making it a full 4-day break.  

It is our belief that most employers will be accommodating this extra day’s paid holiday, although whether or not there is an actual legal entitlement to it depends upon exactly what is stated in their employment contract. However, expectations will already be there and not granting the day would no doubt lead to ill-feeling.  

Part-time employees should also be afforded a pro-rata entitlement (possibly on an alternative day). 

If you have not already communicated your intentions to your staff, we suggest that you do so without delay in order for people to make their arrangements.   

Right to Work Checks

In business principles, contracts, Employment law, government, Uncategorized on February 16, 2022 at 1:03 pm
passport and visa with a tick below

Employers in the UK have a responsibility to prevent illegal working. This means conducting a simple “right to work check” before offering work to make sure the individual is not disqualified from working by reason of their immigration status. 

Carrying out these checks and keeping a record will give a defence against liability for a civil penalty in the event you are found to have employed someone who is prevented from working by reason of their immigration status. 

If an individual’s right to work is time-limited, you should conduct a follow-up check shortly before it is due to come to an end.  

There are two types of right to work checks: a manual document-based check and an online check. Conducting either the manual document-based check or the online check will provide evidence to support your defence.  

You can also use the Employer Checking Service where an individual has an outstanding application, administrative review, or appeal; or if their immigration status requires verification by the Home Office, for example in the case of Crown Dependencies.  

Further details about the requirements and procedures to follow are available in the Home Office guidance document: An employer’s guide to right to work checks (publishing.service.gov.uk) 

How to deal with the extra bank holiday in 2022

In business principles, contracts, holiday on December 8, 2021 at 11:35 am

To mark the Queen’s Platinum Jubilee, an additional bank holiday has been announced to take place on Friday 3rd June 2022. Whilst June 2022 may be far from your mind, most employers’ holiday years commence on 1st January each year, and with only a few weeks left of 2021, it’s certainly worth considering how this may or may not impact your employees’ holiday entitlements for 2022 and if an employee is entitled to this extra days’ holiday. The answer to this question will vary depending on the wording of the employee’s contract.

In a standard year, there are 8 Bank Holidays in England & Wales, these being New Year’s Day, Good Friday, Easter Monday, Early May Bank Holiday, Spring Bank Holiday, Summer Bank Holiday, Christmas Day and Boxing Day.

In 2022, the May Spring Bank Holiday will be moved to Thursday 2nd June and an additional Bank Holiday on Friday 3rd June will create a four-day weekend to help celebrate The Queen’s Platinum Jubilee. Therefore, employers should be aware that on top of the extra Bank Holiday, there is also a re-shuffle of when the Spring Bank Holiday, usually at the end of May, is taken.

If the contract states an employee’s holiday entitlement includes Bank Holidays and then lists the standard Bank Holidays that are recognised as part of the holiday entitlement, then there would be no need for the employer to give an extra day for The Queen’s Platinum Jubilee. This would also be true if the contract just states the entitlement includes the usual or standard Bank Holidays.

If the contract states holiday entitlement includes bank holidays, without listing the Bank Holidays or referencing the usual/standard Bank Holidays, then the employee would be entitled to the extra day, as the Queen’s Platinum Jubilee is a Bank Holiday, and the contract states the employee is entitled to Bank Holidays as part of their annual entitlement.

Even if there is no contractual right to the extra Bank Holiday, an employer can decide to give the extra day as a gesture of goodwill. Many employees may assume that they will get the additional Bank Holiday, while legally an employer may not be required to give Friday 3rd June 2022 as a day off, they may decide to allow the day to enhance employee relations.

Again, if there is no contractual right to the extra Bank Holiday, an employer can decide to close on Friday 3rd June 2022, without giving an extra day’s holiday. Notice could be given, ideally at the start of the holiday year, if not sooner, that an employee must save a day of their yearly entitlement to cover the closure for the Queen’s Platinum Jubilee. This is similar to what many employers do for Christmas shutdowns, however like above an employer should think about employee’s expectations and how such a decision may affect employee relations.

It would be good practice for an employer to forewarn employees of their entitlement or not, of the extra Bank Holiday. If you are unsure of what your employees may be entitled to then please contact your consultant to discuss this. 

If you have no employment contract in place (we highly recommend you implement this immediately as you have a legal duty to do so), your approach would be to consider what ‘implied contractual terms’ are in place, i.e. what have you done in previous years with regards to holiday arrangements or what communications surrounding holidays have you shared with employees.

National Insurance and Real Living Wage increases

In business principles, contracts, government, pay, Uncategorized on December 8, 2021 at 11:34 am

Increase to NI from April 2022

The Government has announced plans to increase National Insurance payments by 1.25% from April 2022 to raise funds for social care and the NHS. Employers will need to prepare their payroll teams for these changes and communicate the impact on take-home pay to staff. From April 2023, the increase must appear as a separate deduction on payslips as a “levy”.

Real Living Wage

Not to be confused with the compulsory National Living Wage (NLW), the Real Living Wage is an hourly rate of pay calculated by the Living Wage Foundation charity based on what people need to live on to pay for costs including fuel, energy, rent and food. It’s paid voluntarily by almost 9,000 UK employers, but it’s separate to the ‘national living wage’ and the ‘minimum wage’, which are the legal minimum rates set by the Government.

The Living Wage Foundation has just made its annual announcement of the rates to be paid in 2021/22 by accredited employers – £11.05 an hour for London and £9.90 an hour for the rest of the UK. Accredited employers should implement the rise as soon as possible and within 6 months. All employees of accredited employers should receive the new rate by 15 May 2022.