Employment Policy Guidance
Games Makers or Spectators – Time off during the Olympics 2012
Dealing with requests for time off work during the London 2012 Olympic and Paralympic Games.
During the London 2012 Olympic and Paralympic Games events will take place at venues in the Olympic Park, across London, and at the following out of London venues:
- Brands Hatch
- City of Coventry Stadium
- Eton Dorney
- Hadleigh Farm
- Hampden Park
- Lee Valley White Water Centre
- Millennium Stadium
- Old Trafford
- St James’ Park
- Weymouth and Portland
The Olympic Games start on 27 July 2012 and run until 12 August 2012.
The Paralympic Games begin on 29 August 2012 and close on 9 September 2012.
Some of your staff may already be asking you for time off because they have volunteered to help at the Olympic Games or want to attend as a spectator at the London 2012 Games.
The Games will rely on about 70,000 volunteers called “Games Makers”. Games Makers will undertake a wide range of roles. Many of these may be behind the scenes or may require working anti-social hours. Some may have to work off-site in a warehouse distributing uniforms; others will be outside exposed to the elements for hours on end.
Games Makers will be required to commit to a minimum of 10 days at either the Olympic or the Paralympic Games, or for a minimum of 20 days if they want to volunteer at both.
For the Olympic officials coordinating the volunteers will be a complex operation, so volunteers will need to be as flexible as possible but once a roster has been allocated Games Makers will not be able to change their shifts.
Games Makers will be given their roster in April 2012, so employers can be given a couple of months’ holiday notice.
With around 6 months to go until the Olympics, it is recommended that, to avoid any last-minute hurdles employers should be preparing for staff being away from work either as volunteer Games Makers or simply spectators at the numerous events.
Employers should start talking to employees now who are volunteering during the 2012 Games or have acquired tickets to go along to one or more of the events in order to manage expectations and minimise the impact on workplace productivity.
The key to avoiding potential misunderstanding or conflict is to have a clear policy in advance and communicate this to all staff – that way, everyone knows where they stand and you look after your business needs. Your policy need not be very complicated – a simple process of ‘first come, first served’ may be enough.
Employees have no legal right to take time off for volunteering. You can decide to give paid or unpaid time off or, if not, the employee may wish to take annual leave.
Annual Leave – the basics
When an employee starts work details of holidays and holiday pay entitlement should be found in the employee’s written contract, where there is one, or a written statement of employment particulars given to employees by their employer.
Most workers – whether part-time or full-time – are legally entitled to 5.6 weeks of paid annual leave. Additional annual leave may be agreed as part of a worker’s contract. A week of leave should allow workers to be away from work for a week – i.e. it should be the same amount of time as the working week. If a worker does a five-day week, he or she is entitled to 28 days leave. If he or she does a three-day week, the pro rata entitlement is 16.8 days leave. Employees who work irregular work patterns accrue leave at a minimum rate of 12.07% of each hour worked.
Employers can set the times that workers take their leave, for example for a Christmas shutdown. If a worker’s employment ends, he or she has a right to be paid for the leave time due and not taken.
Public or Bank Holidays
There is no legal right to paid leave for public holidays; any rights to paid time off for these holidays depends on the terms of a worker’s contract. Paid public holidays can be counted as part of the statutory 5.6 weeks of holiday.
How much notice should be given when requesting leave?
Employers and employees can agree how and when to give notice of when leave is to be taken. But in the absence of any agreement the notice period should be at least twice the period of leave to be taken.
Can an employer refuse leave?
Restrictions on taking holidays may be stated in the contract of employment, implied from custom or practice, or incorporated into individual contracts from a collective agreement.
Employers may choose to:
- Shut down for certain periods where workers have to use their annual entitlement;
- Nominate particular dates as days of closure when workers are expected to take annual leave;
- Determine the maximum amounts of leave that can be taken on any one occasion and also the periods when leave may be taken;
- Determine the number of workers who can be off at any one time.
How do you calculate holiday pay for workers with no normal working hours?
If a worker has no normal working hours then a week’s pay is the average pay received over the preceding 12 weeks. Any weeks for which no pay was due should be replaced by the least previous week for which pay was due.
Contact HR Management Support if you need any further guidance on managing applications for time off from Games Makers during the London 2012 Olympic and Paralympic Games.
Successful Restructuring and Redundancy programmes
Successful Restructuring and Redundancy programmes
Varying economic times dictate a company’s actions. Financial uncertainty can lead to companies closing and laying off workers, while an economic upturn can encourage acquisitions and mergers. No matter what the economic climate a company needs to follow a structured plan to ensure a smooth process as they go through major corporate transactions and restructurings.
From mergers, acquisitions, reduced demand for products or services, changes in technology and plant closures careful handling of restructuring and redundancy is essential to minimise the risks and comply with employment legislation and employee relations issues.
Companies engaged in a restructure involving redundancy or redeployment often face a difficult period in terms of managing employee relations, costs, risk and productivity. These factors may also be balanced with the desire of the management to do the right thing by their staff. An objective assessment approach enables a company to provide a fair and defensible process, and allows it to see where their talent lies to help the business move forward following a restructure.
The use of clear and structured assessment criteria in redundancy or redeployment processes greatly benefits the business by:
- By providing a fair and defensible selection process employees are less likely to appeal against final decisions
- Allowing the company to identify talented individuals and effectively match skills in the population to future requirements
- Providing development opportunities through feedback, to both retained employees and those leaving the company
The following steps help to ensure a fair and defensible assessment process, which in turn facilitate positive outcomes for the business and the individuals involved.
1 – Have Clear Objectives
At the start of any project it is imperative that the organisation and key stakeholders are all clear about the objectives of the process. Without clarification of the goal, it is hard to ensure a process will be designed and delivered that will meet the success criteria. Whoever first identifies the need for redeployment/redundancy must have a rationale in mind and it is important that this is explored, understood and accepted by those involved in the roll out of the process.
- What are the success criteria?
- What are the proposed outcomes and business factors determining the change?
- Are you looking to assess against current role performance or future requirements?
- Who are the population likely to be impacted?
- Will volunteers from outside the affected population be accepted?
- What is the proposed approach to support objective decision makers (Assessment Centre, psychometrics, interviews etc)?
- Who are the key decision makers and stakeholders to engage with?
- Ensure HR representatives are present at all briefings to advise and guide managers, manage questions and feedback key issues raised to the decision makers.
2 – Communicate with Employee Representatives and Unions
As a first step in the redundancy or redeployment process, a procedure should be put in place and communicated internally to employees and their representatives. This benefits all parties by helping to ensure fair treatment. By openly sharing information, the process is more likely to be understood and will demonstrate the company’s continued concern for their employees.
- Communicate the policy, process and any updates to employee representatives and/or trade unions as soon as possible.
- Sharing and agreeing points with employee representatives and/or trade unions allows all parties the opportunity to influence the policy before any changes are made, therefore helping to reduce the likelihood of appeals at the end of the process.
- Provide details about the retraining, transfer and redeployment opportunities available.
- Consider and design a redundancy appeals procedure to deal with complaints from employees who feel that the selection/assessment procedure has been unfairly applied to them. This could be achieved by setting up a committee of management and employee representatives to consider individual grievances and any subsequent remedies.
3 – Communicate the Process
People are naturally concerned and apprehensive about the unknown, so clear communications can help to ensure clarity and a thorough understanding of upcoming events. Ongoing communication and support can help to put people at ease during a redundancy or redeployment process. It is also advisable to provide information to employees on what to expect and what the process will involve.
- Try to minimise uncertainty: announce plans to all involved hierarchically and simultaneously according to job level and provide an initial briefing document to respond to any immediate queries.
- Advise in writing all employees who are “At Risk” and those who are not involved in the process.
- Explain to staff the decision making. This can be done through either a briefing document or face to face group briefings
- It is helpful to have a full briefing immediately prior to the first assessment interviews being undertaken. Here, you can introduce the employees to the personnel that are involved and make sure they are clear about what the assessment will be like.
- Gaining the buy-in of the senior operational manager who fully understands what is involved emphasises the business support towards the process.
4 – Understand what to Assess
An important element in designing a successful process is ensuring that the criteria for selection are directly relevant to the roles being reviewed. In order to do this, some form of job analysis should be conducted. This involves talking to, and possibly observing, people currently in the affected roles to identify the behaviours demonstrated (which will be assessed), the types of tasks completed (which will inform the choice or design of exercises) and the level of behaviours required for success (which will become the benchmark for identifying effective employees).
- Whilst it is ideal to speak with individuals already in role, during a redundancy or redeployment process these individuals are likely to be going through the process themselves.
- If new jobs are being created, or if roles are changing, observing people in current roles may not be appropriate. Even if this is the case, it is still important for some kind of job analysis to occur, as if a participant appeals their Assessment interview outcome, evidence would be needed to show why specific behaviours and benchmarks were chosen.
- In these situations, job analysis could be conducted with:
- Directors or those leading the restructure to understand the drivers of change
- Senior managers who can project what behaviours they anticipate being required in any new or changed roles
- Customers who can outline what their current needs are, or how these might change in the future
- Draw up a matrix of all required skills and behaviours and rate them on priority and importance.
5 – Manage Special Requirements
When designing the assessment process, it is important to consider how individuals who may have special requirements can access the assessment process. There are many types of special requirements to consider, with some of the most common ones being those with physical disabilities, learning difficulties or visual impairment.
When people are selected to go through the assessment process, whether through nomination or voluntary application, it is important to directly contact anyone who states a ‘special requirement’ to explore their specific requirements.
- Discuss what adaptations they currently have in the workplace, explain the types of assessments they will be completing and agree how you could adapt the activities for them
- Don’t make assumptions about their requirements, but communicate openly around any adaptations necessary
6 – Assessment Criteria
When using assessment criteria as part of a redundancy process, it is vital for objectivity and legal defensibility reasons, that the tools and measures used provide consistency and a balance of themes, creating a ‘level playing field’ for all participants, irrespective of their specific prior experiences or knowledge. Tools for selection can include psychometric tests, questionnaires, application forms, structured interviews and business simulation exercises.
- By understanding the role requirements and what good performance looks like, you will be able to identify the key six to eight competencies essential for the role or job level, and which tools will provide a good measure of these.
- Assessment simulation exercises have great validity as they can be designed to replicate the kinds of tasks the employee completes in their daily work. They provide objective behavioural evidence of current capability, which serves as an indication of future performance.
- Consider time, resources and budget, as these will all influence your choice of tools. Assessing for redundancy purposes warrants significant investment because of the potential cost of getting it wrong.
- Once you have selected your assessment tools, if appropriate, you should try them out. This confirms whether they are pitched at the right level for your specific purpose and will enable you to create a benchmark.
7 – Maintain Objectivity and Fairness
A key reason for using pre-defined assessment criteria are that they are one of the fairest and most objective selection tools available, meaning they can help ensure your assessment for redundancy or redeployment process is legally defensible.
- All participants must receive the same experience, the same communications and be treated equally when scoring.
- Any exercises should be delivered and marked by trained internal or external assessors who are able to objectively assess performance on the different activities.
- Scoring rules should be applied in the same way to all participants. Your scoring rules should be determined in advance to ensure that decisions are not made after seeing individual participant scores. This is an important part of the process, as ultimately this is what the decisions regarding redundancy or redeployment are based on.
- Process should be overseen by an independent manager, who is both an experienced assessor and able to coach the assessing team and benchmark their write-ups.
8 – Provide Feedback to Participants
All participants should be given some feedback on their own performance, at least results provided in a written report. This is then something they can use as the basis for development in a new role or as part of their reflection when applying (internally or externally) for other positions.
- Giving feedback is often overlooked, but it shows the organisation’s commitment to transparency and to supporting individuals by providing clear and objective feedback around strengths and development areas, both for those leaving the organisation and those retained in new roles.
- Bearing in mind the emotional drain of this type of process on all involved, individuals will want to know as quickly as possible what their outcome is, and then at a more leisurely pace digest their feedback and review the impact.
- Participants should know in advance the timescale for feedback, who will deliver it and how it will be delivered.
- We recommend that each individual is informed of the outcome (e.g. stay in role, be redeployed, or made redundant) separately to receiving their assessment interview feedback.
Other Considerations
These steps are key to a successful and well run assessment process, however there are likely to be other things to think about in the design and implementation of an assessment for redundancy or redeployment process:
- Put mechanisms in place to support and encourage participants on the day of their assessment interview to reduce anxiety for those taking part.
- As well as those leaving the organisation, support the survivors, as ensuring positive engagement with retained employees impacts post-change performance.
At HR Management Support we have many years of experience of successfully managing restructuring and redundancy programmes. Careful handling of restructuring and redundancy is essential to minimise the risks and comply with employment legislation and employee relations issues so, for professional advice and guidance and help with managing your project please contact us first.
Parental Leave
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
Agency Workers Regulations 2010 – A brief guide
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.
Flexible working – Responding to applications
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.
The Ethics of Gift Giving or Receiving – Bribery Act 2010
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.
CIPD
Fareham Businesses – BNI Fortress Fareham