Employment Law

Unfair Dismissal qualifying service changes

January 13, 2012 |

Author Tim

Unfair Dismissal qualifying service changes with effect from 6th April 2012:

The Government has confirmed that with effect from 6 April 2012 the qualifying period of service required for an employee to present a claim for unfair dismissal would be extended from 1 to 2 years.

This increase will provide employers with a greater opportunity to assess the suitability and performance of new employees and more flexibility in terminating their employment if they are deemed not to be meeting the required standards.

Currently, an employee can present a claim for ordinary unfair dismissal once they have 1 years’ continuous service. However, there are certain exceptions to this when an employee with any length of service can present a claim for unfair dismissal.

For example:

where the individual has been dismissed for making a protected disclosure (i.e. whistle blowing)
in relation to trade union activities
health and safety reasons
pregnancy, maternity or other ‘Family Friendly’ rights.

It is expected that these exceptions will continue to apply and will no doubt become more important with the future increase in the qualification requirement. There may also be an increase in allegations and claims relating to discrimination which also do not require any qualifying period.

Consolidating a number of previous acts the Employment Rights Act 1996 confirmed the qualifying period to be 2 years but at the time there was a legal challenge to the qualification period on the basis of indirect sex discrimination (R v Secretary of State Ex. P Seymour-Smith (2000) – a case which was based on a dismissal which took place in 1991.

Mrs Seymour-Smith claimed that the requirement for 2 years’ service to bring a claim for unfair dismissal was indirectly discriminatory against women, and therefore incompatible with the Equal Treatment Directive, since less women were able to comply with the requirement (to have 2 years’ service) than men.

The House of Lords held that although the 2 year requirement did constitute indirect discrimination contrary to the Directive the Government had ‘objectively justified’ the requirement – to encourage recruitment by employers.

With effect from 1st June 1999 the 2 year qualifying period was reduced to the current 1 year requirement. It remains to be seen whether another challenge to the 2 year requirement will be mounted once the increase takes effect in April and if so, whether the challenge would result in the same outcome as in the earlier Seymour-Smith case.

The increase to 2 years service to pursue a case of Unfair Dismissal will bring the position in line with the qualification requirement for a redundancy payment which, under the statutory scheme, requires an employee to have 2 years’ service.

Posted in Employment Law |

Tags: Allegations, Continuous Service, Disclosure, Employment Rights Act, Employment Rights Act 1996, Equal Treatment, Exceptions, Health And Safety, House Of Lords, Indirect Sex Discrimination, Legal Challenge, Maternity, No Doubt, Qualification Period, Qualifying Service, Safety Reasons, Secretary Of State, Service Changes, Suitability, Unfair Dismissal, Whistle |

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Parental Leave

January 2, 2012 |

Author Tim

This article provides guidance on the parental leave provisions contained in the Maternity and Parental Leave (Amendment) Regulations 2001

What is parental leave?

Parental leave offers qualifying parents the right to take up to 13 weeks unpaid time off work to look after a child or make arrangements for their welfare.

Parental leave should only be taken to care for the welfare of a child, for example an employee may wish to take leave to:

Stay with a child who is in hospital
To spend more time with a child
To make school / childcare arrangements and to help them settle in.

Who qualifies for Parental Leave?

If an employee has completed one year’s service with an employer, they are entitled to 13 weeks unpaid parental leave for each child born or adopted. The leave can start once the child is born or placed for adoption, or as soon as the employee has completed a year’s service, whichever is later.

The employee must either be the parent:

named on the child’s birth certificate
named on the child’s adoption certificate
with legal parental responsibility for a child under five (under 18 if the child is disabled)

If the parents are separated and the employee does not live with their children, the employee has the right to parental leave if he/she keeps formal parental responsibility for the children.

Foster parents do not have rights to parental leave but may be able to request a flexible working pattern.

Employers can ask for evidence that the employee is entitled to parental leave. This could be:

the child’s birth certificate
papers confirming the child’s adoption or the date of placement in adoption cases
the award of disability living allowance for the child

Employees can take the Parental Leave at any time up to the child’s fifth birthday (or until five years after placement in the case of adoption).

If the child has disabilities, the employee can take 18 weeks up to the child’s 18th birthday.

How is Parental Leave requested?

A request should be made to the employer giving 21 days notice of the start date of the parental leave, the employer may ask for this to be in writing.

As long as the employee qualifies for parental leave and gives the employer the correct notice the employee should be able to take parental leave at any time.

To take parental leave straight after the birth or adoption of a child, an employee should give notice 21 days before the beginning of the expected week of childbirth or placement. In cases where this may not be possible the employee should give notice to the employer as soon as possible. For example, if a child is born prematurely or where less than 21 days notice is given that a child is to be placed with you for adoption.

An employee will remain employed while on parental leave and terms of their contract of employment, such as contractual notice and redundancy terms, still apply.

At the end of parental leave the employee has the right to return to the same job as before or, if that is not practicable, a similar job with the same or better status and terms and conditions. If leave is taken for a period of four weeks or less, the employee is entitled to go back to the same job.

Can the employer postpone parental leave?

An employer can only postpone parental leave if they have a good business reason for doing so. For example seasonal production, another member of staff is off or the staff absence would harm the business.

Parental leave can be postponed for up to 6 months but can not be postponed so that the leave ends after the child’s fifth birthday (or 18 in the case of adopted or disabled children).

How long can an employee take off in a year?

The default arrangement does not allow anyone to take off more than 4 weeks in any year. However, if the employer agrees to more parental leave being taken then it may be possible.

Is parental leave paid or unpaid?

Statutory parental leave is unpaid, but an employer can offer other arrangements as part of the terms and conditions of employment.

See other articles related to Parental leave: Flexible Working

Posted in Employment Law, Employment Policy Guidance |

Tags: 18th Birthday, Adoption Cases, Adoption Certificate, Amendment Regulations, Birth Certificate, Certificate Papers, Disabilities, Disability Living Allowance, Fifth Birthday, Foster Parents, Guidance, Maternity Leave, Nbsp, Parental Responsibility, Provisions, School Childcare, Time Off, Unpaid Time, Welfare |

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Report calls for one million self employed to be exempt from health and safety law

November 28, 2011 |

Author Tim

Following recommendations proposed by Professor Löfstedt, the Government has announced plans to begin a major cut back of health and safety red tape as early as January 2012. It will begin an immediate consultation on the abolition of large numbers of health and safety regulations and intends to have removed the first rules from the statute book within a few months.

See the full report

Posted in Health & Safety |

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FUNDAMENTAL REVIEW OF EMPLOYMENT TRIBUNAL RULES

November 28, 2011 |

Author Tim

The Government has asked Mr Justice Underhill to lead a thorough review of employment tribunal rules (as contained in Schedule 1 of the 2004 Regulations (Bringing and Managing a claim); and develop and recommend a revised procedural code.

He has been provided with (Draft) Terms of Reference under which he will conduct his review, and develop his recommended revised procedural code, with a view to ensuring that robust case management powers can be applied flexibly, effectively and (insofar as is practicable) consistently in individual cases. The overriding objective of the system remains as set out in Regulation 3 of the 2004 Constitution & Rules Order (i.e. enabling tribunals and chairmen to deal with cases justly), in particular, the revised procedural rules for employment tribunals should, insofar as practicable, ensure that:

a) cases can be managed in a way that is proportionate to the nature of the issues involved, with the importance of saving expense considered throughout.

b) proceedings can be handled quickly and efficiently, with an emphasis on helping proceedings to resolve themselves otherwise than through judicial determination at hearings, and dealing robustly and, so far as appropriate, consistently with cases where they appear to have little or no reasonable prospect of success, with a view to fairness for all parties and the tribunal and its resources; Consideration should also be given to the efficiency in the listing of cases for hearing.

c) rules are both simple and simply expressed, in particular given the significant proportion of unrepresented parties using employment tribunals;

d) proceedings have as much certainty as the nature of particular cases allows, and that in particular like cases are treated alike (with as much use made of standardised orders and directions as possible, building on the good work already developed around Case Management Discussion agendas), and the rules are exercised, and orders are made, in a manner that is consistent, so far as appropriate, across Great Britain (backed, where necessary and appropriate by relevant and published practice directions)

In conducting the Review, Mr Justice Underhill will be required to have specific regard for the cost-effectiveness and proportionality of the system, both insofar as taxpayers are concerned, and the parties themselves.

Following his review of Employment Tribunal Rules, Mr Justice Underhill is expected to recommend a revised procedural code for employment tribunals by the end of April 2012.

Posted in Employment Law |

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Workplace pensions & automatic enrolment – a guide to employers duties

November 4, 2011 |

Author Tim

From October 2012 changes to pensions law involving automatic enrolment into a pension scheme will affect all employers with at least one worker in the UK.

The changes will require employers to:

Provide a process of Automatic enrolment of certain workers into a pension scheme.

Note: A ‘worker’ is a wider category than just employees and can include some contractors or agency workers. As a general rule, if you have to pay the national minimum wage to someone, or they are working under an apprenticeship, they are a worker.

Register with The Pensions Regulator (‘the regulator’)
Make contributions to the pension scheme on their workers’ behalf
Provide workers with certain information about the changes and how they will affect them.

The changes will be introduced over 4 years starting in October 2012 and each employer will be allocated a date from when the duties will first apply to them. This will be known as their ‘staging date’. – Small firms will not have to comply with automatic enrolment until 2014 at the earliest.

The staging date will be based on the number of people in the employer’s PAYE scheme with the largest employers having the earliest staging dates. (Employers can check their provisional staging dates on the following web site: www.tpr.gov.uk/staging )

Employers will be allowed some flexibility by choosing to bring forward their staging date by up to three months but they will not be able to choose a date later than the one they were allocated.

Assessing and indentifying the workforce

Employers will need to assess their workforce to see what their duties will be in relation to each of their workers.

Workers who need to be automatically enrolled are called ‘eligible jobholders’ and include workers:

Aged between 22 and state pension age
Earning more than the minimum earnings threshold (currently proposed to be £7.475 pa) – The worker’s ‘qualifying earnings’ will include: salary, overtime payments, commission, bonuses, sick pay, maternity, paternity and adoption pay.
Working, or ordinarily working, in the UK. – The location of the employer is not relevant when considering if a worker is an eligible jobholder. Neither is the workers nationality or length of stay in the UK. What is relevant is whether the worker is working or ordinarily working in the UK.

Workers classified as ‘eligible jobholders’ will need to be automatically enrolled into a pension scheme that meets a number of conditions based on the level of contributions paid or the benefits that they receive. Eligible jobholders may choose to ‘opt out’ of the scheme, but only after they have been automatically enrolled by the employer.

It may be possible for employers who employ short term or seasonal staff to defer auto enrolment of a worker to a pension scheme by introducing a ‘waiting period’ of up to three months.

Choice of pension scheme.

Employers may choose a pension scheme into which workers will be automatically enrolled. This may be an existing scheme, a new scheme from an approved pension provider or the National Employment Savings Trust, NEST which has been set up by the Government to ensure that employers, including those that employ low to medium earners, can access pension saving and comply with their automatic enrolment duties.

Whether a scheme an employer uses for automatic enrolment is new or not, it must meet certain criteria set out in legislation.

The scheme cannot:

Impose barriers, such as probationary periods or age limits for members
Require staff to make an active choice to join or take other action, e.g. having to sign a form or provide extra information to the scheme themselves, either prior to joining or to retain active membership of the scheme.

Each pension scheme will have its own rules, but all employers will need to provide their scheme with certain information about the person who is being automatically enrolled.

Regulator registration

All employers will need to register on-line with the regulator.

Employer and Worker contributions

The rules of defined contribution (DC) schemes must require the employer to pay an overall minimum contribution of at least 8% of the worker’s qualifying earnings, of which 3% of this contribution must be from the employer.

In most cases, Government tax relief will account for 1% of the total 8%.

Employers who already have a pension scheme can confirm that it is suitable for automatic enrolment by a process called ‘certification’.

Opt-out notices

Workers who have been automatically enrolled have the right to opt-out of the employer’s pension scheme. There is an opt-out period of 1 month, where any deductions made from their salary will be refunded. The worker can choose to cease membership at any time, although they may not be entitled to a cash refund of contributions after the end of the 1-month opt-out period.

To opt-out, workers must give notice via a document called an ‘opt-out notice’ to the employer. These notices will usually only be available from the pension scheme provider and not the employer, so that workers do not feel pressured into opting out.

When employers receive a valid opt-out notice within the 1-month period, they must pay back any contributions deducted from the worker’s pay. Equally, any contributions the employer has made must be refunded to the employer by the pension scheme.

Opt-in or joining requests

As well as automatically enrolling eligible jobholders, employers must also put certain other workers into a pension scheme, if these individuals ask. What the employer will need to do depends on the type of worker.

Certain workers have a right to ‘opt-in’ to an automatic enrolment scheme and the employer is required to arrange this and make employer contributions.

Other workers have a right to ‘join’ any scheme but there is no requirement on the employer to make employer contributions in respect of these workers; although the employer must set up the deduction of the worker’s contributions from pay.

Inducements and prohibited activity

Any worker’s decision to opt-out of a scheme, or stop saving for retirement altogether, must be taken freely and without influence by the employer.

There are safeguards in place intended to protect the rights of individuals to have access to pension provision. These safeguards mean that employers must not take, or fail to take, any action, with the sole or main purpose to attempt to induce a jobholder to opt out of a pension scheme. Equally, an employer must not try to screen out job applicants on grounds relating to potential pension scheme membership, or suggest that a job applicant’s success could depend on whether or not they opt out of a pension scheme.

Maintaining appropriate and accurate records

Employers must keep specific records about their workers and their pension scheme(s). Most of these records must be kept for a minimum of 6 years.

Employers can use electronic or paper filing systems to keep or store any records, as long as they are legible or can be produced in a legible way if the regulator asks to see them.

Keeping accurate records about workers and the pension scheme helps avoid or resolve potential disputes with workers, as well as aide reconciliation of pension contributions.

Employers have a great deal of flexibility to use their existing business documentation (e.g. payroll records) as evidence of keeping a particular record.

An employer must also be able to keep track of the ages and earnings of everyone who works for them at all times. This is important to retain on-going compliance with the requirements.

Providing workers with information about the changes

Employers will need to inform their workers about the changes and how those workers are affected by them.

The specified information must be provided in writing, which can include being sent by email. However, it is not enough just to point individuals to an internet or intranet site, or display a poster in the workplace.

If the specified information requires personal or individual data to be communicated, it should not be included in a generic communication. In these circumstances, the employer is likely to have to write to, or email, each worker individually.

Where the specified information does not require individual data (e.g. the information to a jobholder about their right to opt in), it may be possible to provide the information in a generic communication, such as a joining pack.

The duty is on the employer to provide the right information to the right individual at the right time. Someone acting on the employer’s behalf (such as an Independent Financial Adviser (IFA), provider or benefit consultant) can provide the information, but it remains the employer’s responsibility to make sure it is provided on time and is complete and correct.

Click here for other Pension change posts

We will be updating this website with more information about workplace pensions and automatic enrolment in the coming months as and when the Pensions Regulator releases further details.

Posted in Employment Law, Pension |

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National Minimum Wage rate increases October 2011

September 30, 2011 |

Author Tim

With effect from 1 October 2011 new National Minimum Wage (NMW) rates will apply:

The adult rate will increase by 15p to £6.08 an hour;
The rate for 18-20 year olds will increase by 6p to £4.98 an hour;
The rate for 16-17 year olds will increase by 4p to £3.68 an hour; and
The rate for apprentices will increase by 10p to £2.60 an hour.

Posted in Employment Law |

Tags: 10p, 15p, 4p, 6p, Adult Rate, Apprentices, Minimum Wage Rate, National Minimum Wage, Rate Increases |

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Agency Workers Regulations 2010 – A brief guide

September 9, 2011 |

Author Tim

Agency Workers Regulations

The Agency Workers Regulations 2010 (as amended 2011) give temporary agency staff equal treatment with regards to basic working and employment conditions after 12 weeks of service in the same job.

Equal treatment under the regulations relates to basic working and employment conditions such as; working hours, overtime, breaks, rest periods, holidays and access to training and facilities, such as childcare. The regulations do not include pension provision and occupational sick pay, nor do the regulations change the employment status of temporary agency workers to that of permanent employees after 12 weeks.

The Regulations apply to agency workers performing temporary work through an employment business (TWA, Temporary Workers Agency). They do not apply to:

those seeking permanent or direct employment with employers;
permanent employees;
fixed term employees;
casual workers hired direct by employers;
independent contractors or consultants who are genuinely self employed working through their own personal service companies.

The Regulations give agency workers two types of rights:

12 week rights

The right, once they have worked in the same assignment for 12 weeks, to be treated, in terms of pay and employment conditions, as if they had been hired directly into that role at the start of the 12 week period. This is often referred to as the right to equal treatment after 12 weeks;

Day 1 rights

Rights applicable from day one of an assignment to:

be informed of any relevant vacancies within a hirer’s organisation;
access to collective facilities and amenities provided by the hirer.

The test to establish equal treatment in relation to a qualifying worker will be: on what terms would the agency worker have been employed by the hirer had the hirer employed them directly at the start of the 12 week period?

The hirer will need to establish and confirm to the TWA what it would have paid the agency worker had they employed him/her directly, taking into account that individual’s qualifications, expertise and experience. The test is hypothetical but if it can be shown that the treatment of the agency worker is consistent with the treatment of an actual employee within the hirer’s organisation (who is currently employed and doing broadly the same or similar work), the TWA will be deemed to have complied with the Regulations.

The onus, under the Regulations, is on the TWA to satisfy this test but the TWA will not be able to do this unless the hirer has been forthcoming with the information required. If the hirer is not forthcoming then the TWA will have a defence and the hirer may be liable. The relevant treatment for these purposes is whether the agency worker is given (after the 12 week qualifying period is completed) the same basic pay and working conditions they would have received had they been hired directly into the role. This entitlement is only in relation to the following:

pay
working conditions:

duration of working time
night work
rest period
rest breaks
paid annual leave

Pay means all sums payable in relation to the position in question (subject to some exceptions):

salary or wages
commission
holiday pay (which includes statutory and occupational paid holiday)
shift allowances
overtime, antisocial hours or dangerous/difficult work premiums
bonuses attributable to quantity or quality of work done (e.g. piece work and individual performance related bonuses)

Pay is not:

Occupational sick pay
Maternity pay
Redundancy pay;
Pensions, retirement gratuity or compensation for loss of office;
Financial participation schemes including share option and profit sharing schemes;
Bonuses and incentives not directly attributable to the quality or quantity of work done but which are given for some other reason such as overall company performance.

Holiday pay

If a hirer grants paid holiday entitlement in excess of the statutory minimum paid holiday entitlement (currently 5.6 weeks inclusive of public or bank holidays) this will need to be taken into account when matching an agency worker’s terms for equal treatment purposes.

Incentives and bonuses

There are a great many different incentive and bonus arrangements which makes this one of the more complex areas of the Regulations. Whether an incentive or bonus arrangement will need to be taken into account and matched in relation to a qualifying agency worker will depend on whether the arrangement relates to the performance of the team or company (i.e. it contains an element of distribution of a share of profits, options or shares) to which extent it is outside scope or whether the payment is directly attributable to the amount or quality of the work done by the worker (in which case it is in scope).

Benefits in kind are usually not pay and will not count. The exception will be where a benefit:

has a fixed value expressed in monetary terms;
is capable of being exchanged for money, goods and/or services. E.g. luncheon vouchers

12 week qualifying period

The right to ‘equal treatment’ does not apply to an agency worker until they have worked in the same role at the same hirer for 12 continuous calendar weeks (from 1 October 2011 onwards), regardless of their working pattern.

A new 12 week qualifying period will begin if there has been:

a new assignment with a different hirer;
a six week break between assignments;
a new role with the same hirer which is substantively different from the previous one. (The TWA must have informed the agency worker in writing of the new role and type of work they will be doing in it.)

Some periods away from the workplace do not count towards the 12 week qualifying period or the six week break period but the agency worker will still be able to count the weeks worked before the absence. In other words the clock is paused during the following absences:

up to 28 weeks sickness absence;
statutory or contractual time off/leave excluding maternity, paternity and adoption leave;
up to 28 weeks’ jury service;
a temporary workplace closure according to established custom and practice e.g. Christmas shutdown;
a strike or lockout or other industrial action at the hirer’s establishment.

In addition there are some absences which do count towards the qualifying period during which, therefore, the clock does continue to tick. These are:

absences relating to pregnancy, childbirth, maternity leave or a protected period of up to 26 weeks after a baby’s birth;
absences in relation to contractual or statutory maternity, paternity or adoption leave.

In other words during these absences it is as if the agency worker were in fact at work for the purposes of qualifying for equal treatment under the Regulations.

NB – the 12 week period is measured in relation to the agency worker performing the same role at the same hirer. It is not measured in relation to the supply of that worker through one TWA. A worker may be supplied into the same role at the same hirer by different TWAs totalling 12 weeks and the agency worker will acquire the right to ‘equal treatment’ at the points/he has worked that total 12 week period in the same assignment with the same hirer.

Anti avoidance provisions

The Regulations contain provisions which give an agency worker the right to be treated as if they have met the 12 week qualifying period if it can be shown that a hirer and/or TWA have used a pattern of assignments to deprive an agency worker of their rights. In such a case a tribunal may make an additional award to that worker of up to £5,000.

Day one rights

Liability for any breaches relating to day one rights (access to vacancies and collective facilities) will rest solely with the hirer.

12 week rights

The TWA is responsible for setting the agency worker’s terms and conditions. Any breaches in relation to their pay and employment conditions will rest with the TWA to the extent that the TWA is responsible for the breach. The TWA can only afford the agency worker the requisite pay and employment conditions however if the hirer has provided the necessary and correct information in the first place. Therefore if the hirer gives the TWA incorrect information or fails to notify the TWA of any change to any pay or working condition term the burden of liability will transfer from the TWA to the hirer.

Remedies for breach

An agency worker who feels they are not being given equal treatment in accordance with the Regulations may make an information request:

to the TWA and the hirer in relation to 12 week rights; or
to the hirer in relation to day one rights.

A tribunal can draw an adverse inference from any failure on the part of the TWA or the hirer to respond.

Exceptions

If an agency worker has a contract of employment with the TWA and is paid between assignments at least at 50% of the rate they were paid in their last assignment, then provided the contract meets certain conditions, the provisions in the Regulations relating to pay will not apply. This is often referred to as the ‘Swedish derogation’. It is likely to be most useful where there is a high demand for workers with particular qualifications, expertise or experience and a corresponding shortage of them.

Employment status

The rights the Agency Workers Regulations bestow on agency workers have no impact on their employment status in relation to the hirer. The entitlement to access the hirer’s facilities from day one and to equal treatment after 12 weeks will not make the agency worker the hirer’s employee.

Posted in Employment Law, Employment Policy Guidance |

Tags: Agency Staff, Employment Business, Employment Conditions, Employment Status, Equal Treatment, Hirer, Independent Contractors, Personal Service Companies, Relevant Vacancies, Temporary Agency, Temporary Work, Temporary Workers, Twa |

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Flexible working – Responding to applications

September 8, 2011 |

Author Tim

Responding to applications for flexible working

Who can ask for flexible working arrangements?

Anyone can ask their employer for flexible working arrangements, but the law provides some employees with the statutory right to request a flexible working pattern.

Applications can be made by:

an employee, but not an agency worker
employees who have worked for their employer for 26 weeks’ continuously before applying
An employee who has not made another application for flexible working under the right during the previous 12 months

And:

have or expect to have parental responsibility of a child aged under 17
have or expect to have parental responsibility of a disabled child under 18 who receives Disability Living Allowance (DLA)
are the parent/guardian/special guardian/foster parent/private foster carer or as the holder of a residence order or the spouse, partner or civil partner of one of these and are applying to care for the child
are a carer who cares, or expects to be caring, for an adult who is a spouse, partner, civil partner or relative; or who although not related to the employee, lives at the same address as the employee

The law requires the employer to seriously consider an application, and only reject it if there are good business reasons for doing so. The law only provides the right to ask for flexible working – not the right to have it. Employers can reasonably decline an application where there is a legitimate business reason.

Employees who do not have the legal right to request flexible working are, of course, free to ask their employer if they can work flexibly.

Examples of flexible working are:

flexi time: choosing when to work (there’s usually a core period during which employees have to work)
annualised hours: employees hours are worked out over a year (often set shifts with flexibility on deciding when to work the other hours)
compressed hours: working the agreed hours over fewer days
staggered hours: different starting, break and finishing times for employees in the same workplace
job sharing: sharing a job designed for one person with someone else
homeworking: working from home
part time: working less than the normal hours, perhaps by working fewer days per week

How must the application be made?

The employee must comply with the following requirements:

the application must be made in writing, stating that it is being made under the statutory right to apply for flexible working
the application must confirm the employee’s relationship to the child or adult
the application must set out the employee’s proposal and explain what effect the employee thinks this will have on the employer’s business and how this may be dealt with
the application must specify a start date for the proposed change giving the employer reasonable time to consider the proposal and implement it. This may take 12 – 14 weeks.
the application must state whether a previous application has been made and if so the date on which it was made
the application must be dated

If the application is approved the variation in the contractual terms becomes permanent and the employee has no automatic right to change back to their previous pattern of working unless the application included a specified time period. (Employers may approve an application on a trial basis only).

Responding to applications for flexible working.

On receipt of a written application for flexible working the employer must:

Arrange and hold a meeting with the employee within 28 days to discuss the request. (A meeting is not required if the employer agrees to the terms of the application and notifies the employee accordingly.)
If requested the employer must allow the employee to be accompanied at the meeting by a work colleague.

Following the meeting the employer must:

Notify the employee of their decision in writing within 14 days of the date of the meeting. The notification will either:

Accept the request and establish a start date and any other action
Confirm a compromise agreed at the meeting
Reject the request and set out clear business reasons for the rejection together with a notification of the procedure the employee should follow if they wished to make an appeal against the decision.

If an appeal is made. The employer must:

Arrange to hear the employees appeal within 14 days of it being made
Notify the employee of the decision on the appeal within 14 days of the meeting which either:

Upholds the appeal and details the agreed flexible working arrangements
Dismisses the appeal and states the grounds on which the decision was made.

On what grounds can applicants be refused flexible working arrangements?

Providing the employer has given serious consideration to the application for flexible working it can be refused for one or more of the following reasons:

The burden of additional costs
Detrimental effect on ability to meet customer demand
Inability to reorganise work among existing staff
Inability to recruit additional staff
Detrimental impact on quality
Detrimental impact on performance
Insufficiency of work during the periods the employee proposes to work
Planned structural changes

How can employers demonstrate that they have given serious consideration to an application for flexible working?

The most effective way is to carefully review the role the flexible working applicant undertakes and consider how the changes would affect the ability of the employee to fulfil the role if the proposed changes were made. Would the company need to make other adjustments, would those adjustments be feasible, realistically affordable or would it not be practical to make those adjustments due to the detrimental effect on the business. HR Management Support Ltd has developed a questionnaire that can be used by the employer to help identify and measure the effect flexible working arrangements might have on the role and the business as a whole.

Obtain your own free copy of this flexible working questionnaire by completing the form below and a copy will be emailed to you.

Posted in Employment Law, Employment Policy Guidance |

Tags: 12 Months, Adult, Annualised Hours, Applications, Br, Brea, Business Reasons, Disability Living Allowance, Dla, Flexi Time, Flexibility, Flexible Working, Foster Carer, Foster Parent, Good Business, Legitimate Business Reason, Nbsp, Parent Guardian, Parental Responsibility |

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The Ethics of Gift Giving or Receiving – Bribery Act 2010

May 25, 2011 |

Author Tim

GUIDANCE ON THE ETHICS OF GIFT GIVING OR RECEIVING

considers the implications and ethics of gift-giving
outlines the laws covering this area of business
looks at setting up and implementing a business gifts and hospitality policy.

Corporate Gifts and Hospitality

Corporate gifts are commonplace, with organisations offering promotional packages and hospitality as a reward for their support and level of business. The practice of gift giving is widespread, although more prevalent and ‘acceptable’ in some industries than others. Christmas is the main season for items such as bottles of wine and spirits, boxes of chocolates, diaries, calculators, even briefcases to land on the desks of employees. There is no secrecy or deception involved and the gifts are given in order to consolidate a business relationship.

But where does this stop? Corporate and government policies on receipt of business gifts and hospitality exist because the system is potentially open to abuse. In the financial sector one day’s hospitality could include flying by helicopter to the British Grand Prix and then on by private jet to another major event in Paris. It would be hard not to feel in debt to such a host. As the value of what is given increases, so an unspoken quid pro quo begins to creep in. Eventually the employee and their employer may become unacceptably compromised. Policies can be introduced to protect both employees and employers against relationships leading to bribery and corruption.

Definition of inappropriate business gifts
Anyone receiving or offering an undue reward, be it a holder of public office or a private employee or employer, which is designed to influence the recipient in carrying out their work and incline them to act contrary to the known rules of honesty and integrity, will be acting corruptly.

Where gift giving goes beyond the consolidation of a business relationship, with the main beneficiary being the organisation, and where it no longer follows the published guidelines (where these exist) it may become ‘corruption’. Gifts become bribes and backhanders. The ‘accepted’ foundation for gift giving will vary from organisation to organisation. The important point is that what is ‘acceptable’ and what is ‘not acceptable’ is clearly and widely communicated and published.

How to recognise a bribe-taker
Whether an individual is acting in an unethical manner may be difficult to determine in practice, but certain indications to look out for could be that the individual:

lives, apparently beyond their means with a lavish lifestyle, and has no obvious explanation as to how they fund it
has very close social contacts with suppliers
is generally dismissive of rules, both for themselves and their staff
tries to exert influence outside own area
often complains about the company which is the source of the bribes (as a means of providing ‘cover’ for themselves).

The law and business gifts
There is a plethora of complex, primarily criminal, legislation dealing with bribery and corruption which may arise where seriously inappropriate business gifts are made. This legislation includes:

The Corruption Act 1889
The Prevention of Corruption Act 1906
The Anti-terrorism, Crime and Security Act 2001
The Proceeds of Crime Act 2002
The Bribery Act 2010

Other relevant legislation includes the Public Interest Disclosure Act 1998 which protects whistleblowers from victimisation and dismissal where they raise concerns, in good faith, about misconducts and malpractices

Contractual provisions concerning gifts
A number of implied terms are automatically imposed by the law into an employment contract. These implied terms include a duty of fidelity whereby all employees should serve their employer faithfully and honestly. This implied duty encompasses an obligation not to accept bribes and to account to the employer for ‘secret profits’. In addition to the implied duty, many employers include an express term in their employment contracts that any gifts (or gifts over a certain value) should be reported to an employee’s line manager before they are accepted.

Accepting a bribe may amount to a breach of an employee’s implied duty of fidelity and any express term in the contract. If a director accepts such bribes they will be in breach of their fiduciary duty to always act in the best interests of the company.

Making corporate gifts
The entitlement to make gifts and provide gratuities must be considered in relation to the activities of, and be in the interests of, the company. As long as a donation is incidental or beneficial to the company’s business it is permissible – charitable, educational and political donations given publicly out of corporate funds are usually fine. A gift to former directors or their dependants is also considered to be for the benefit of the company, but will usually require shareholder approval.

The international context
Cultural differences can lead to different interpretations of what could constitute ‘corruption’. What one country might consider unethical, another may view as standard commercial conduct. For example, it may be considered wholly inappropriate, when doing business in Japan, to decline an offer of a night on the town with a sumptuous meal. Similarly, it is customary in Japanese culture to give gifts of increasing value as a business relationship develops. It could be extremely rude in this context to return or refuse a gift because it was seen as a bribe.

There is a growing trend among global organisations to take a stand, and lay down rules that apply throughout all the countries in which they operate irrespective of local ‘custom and practice’. Again, the important point is that all employees are clear about what is ‘acceptable’ or ‘unacceptable’ to the organisation.

Suggested good practice framework
Organisations should produce a clear, concise, written policy to protect the company against fraud, bad practice, and abuse. Employees also benefit from such a policy as they then know where they stand and it is then easier for them to refuse a gift without causing offence.

Policies should:

be issued in a structured way so that all employees have been made aware of them and understand them
leave employees in no doubt about what they are allowed to do and not do in the event of being offered gifts and/or hospitality
cover a wide range of situations
define what gifts are acceptable (if the organisation allows acceptance of gifts at all)
provide examples. This may be a value, for example ‘of a value of not more that £50’ or otherwise described, such as ‘nothing more than a simple calendar, diary, blotter or other item of office equipment of modest value may be accepted, and then only if it bears the company’s name or insignia and could legitimately be regarded as being in the nature of advertising material’.
state what action employees need to take to confirm the acceptance of the gift officially
provide for gifts and entertainment to be declared to superiors
be applied and enforced uniformly, without exception
be clear about the nature of any disciplinary action that might be taken as a result of a breach of the policy.

An employee may be able to successfully challenge a dismissal if they could show that other employees were corrupt and were not disciplined in the same way.

Setting up and implementing a policy

Determine whether there are any rules of professional conduct applicable to certain groups of employees, and ensure that these are incorporated into any policy.
Clarify how the policy will be enforced.
Benchmark against other appropriate organisations.
Make the policy as practical, workable, clear and concise as possible to make it easy for employees to understand and follow.
Ensure the policy is supported by senior management.
Spend time thinking carefully about how the policy will be communicated – emphasise in particular the benefits for the employees:

Consult as necessary and offer staff an opportunity to respond.
Monitor and review.
Offer a contact for employees to check any situations which are borderline.

the policy should be in writing, and everyone affected should have access to it
ensure the policy is given to new recruits, for example, as part of their terms and conditions of employment, or linked in to the disciplinary procedure, by making a breach of the policy an act of misconduct.
translate the policy for foreign subsidiaries.
make copies of the code available to business partners (suppliers in particular).
include the main points in the annual report.

When should a gift be declared?
This will depend on the industry, culture and circumstances. What may seem perfectly normal in the financial sector, may seem outrageous in manufacturing. It is helpful to give a guideline – a maximum value is one which is often mentioned. Consider also who the giver is – if it is a patient in a hospital for example, this would most likely be a method of thanks with no intention to corrupt. Timing is also important: if the gift was given prior to entry to hospital, there might be some idea of gaining a private room, or moving up a waiting list. Some organisations distinguish between ‘casual’ gifts (eg those given at Christmas) and gifts offered whilst business transactions are being made.

Posted in Employment Law, Employment Policy Guidance |

Tags: Beneficiary, Bribery And Corruption, Briefcases, British Grand Prix, Business Gifts, Business Relationship, Corporate Gifts, Desks, Ethics, Financial Sector, Government Policies, Helicopter, Honesty, Hospitality Policy, Outlines, Private Employee, Private Jet, Secrecy, Wine And Spirits, Wine Spirits |

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Bribery Act – Providing hospitality, promotional or other business expenditure

May 11, 2011 |

Author Tim

Does the new Bribery Act that becomes law on 1st July 2011 restrict the provision of hospitality, promotional or other business expenditure?

Providing genuine and proportionate business hospitality and expenditure will not be considered as bribery as defined by the Act, but if it was thought that the hospitality was really a cover for bribing someone then the level of hospitality offered, the way in which it was provided and the level of influence the person receiving it had on the business decision in question might be challenged by the authorities.

Therefore hospitality or promotional expenditure which is proportionate and reasonably given can continue. i.e. Businesses may provide tickets to sporting events, take clients to dinner or offer gifts to clients as a reflection of their good relations.

Posted in Employment Law |

Tags: Act, Authorities, Bribery, Business Decision, Business Hospitality, Business New, Hospitality Business, Offer Gifts, Provision, Reflection, Sporting Events |

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