Tribunal Analysis

The number of Tribunal Cases grew by nearly 25% in 2017/18, the last year full figures are available, compared to the previous financial year says Chris from Expert HR Solutions. The number of cases in England and Wales has, on average, remained constant since 2007/08 at a little over 147,000 he continues. 

The really bad news for Employers is that if you are taken to Tribunal it is very unlikely that you will be able to recover your Legal Costs from the Claimant. Since these will probably run into tens of thousands of pounds it is sensible to take out legal insurance cover. It is also sensible to ask the insurer or broker whether the policy guarantees to pay regardless of the probability of winning the case or not. On many Directors and Officers Policies it is also possible to take out Employment Practices cover which may cover the cost of any award made by the Tribunal. Since the chances of the Employer winning are only fractionally better than 50/50 the added cost is well worth while as average awards are around £4,000. 

Chris says the top three reasons for being taken to Tribunal have remained consistent over the last eleven years. The top reason relating to pay claims such as failure to pay the National Minimum Wage, Unauthorised deductions from wages or failure to provide a pay slip. These account for about 71,000 cases, and with professional advice are almost entirely avoidable. The second commonest cases are those to do with the Working Time Directive. This is a complex area of employment law because it is not as simple as saying I pay my staff an hourly rate that is above the current minimum wage. There are all sorts of deductions that must be taken into account in order to work out the WTD interpretation of the minimum wage, and these cases account for another 59,000 cases a year on average. Finally, the third commonest cases are those involving unfair dismissal. Not only is the most complex area of law, it is also likely to be much more expensive if you get it wrong, with the basic award being capped at nearly £15,000 and the compensation award being 52 weeks’ gross pay or nearly £84,000 whichever is the lower. 

Finally says Chris, of the ten categories of case categories we track only three have been decreasing in numbers over the last few years. There is no way to guarantee you will not be taken to Tribunal, but a simple and cheap way of reducing the risk is ensuring you have a set of HR policies and Contracts of Employment that are compliant with current legislation and case precedent. Expert HR Solutions will review your documentation for FREE and give you a report that indicates the level of risk if any errors are not rectified. If your documents have not been amended in the last two years we can pretty much guarantee they will need some amendment. Why not contact us via our web site or call 01202 611033 to see if we can help.

Commute and non-attendance at work

It is that time of year again when the poor weather is settling in and for the Bournemouth, Poole, Christchurch conurbations we have the added complication of the A338 roadworks making the commute difficult and sometimes impossible says Chris from Expert HR Solutions. Our advice, he continues is that employers should be flexible when employees have problems getting into work.

So what employment law regulations are in place when handling transport troubles in winter? 

There is no law which says you must pay an employee who can’t get to work due to travel disruption or adverse weather conditions, although it may say in their employment contract that they will be paid under these circumstances, in which case you must honour this. 

While it is legal not to pay staff who are unable to get into work, it is usually best to be flexible in these situations and consider in each case whether or not to pay employees. Bad weather is an obstacle which is outside of anyone’s control and it is inadvisable to create incentives for employees to risk their safety attempting to get to work in poor conditions. You should also be careful not to fall foul of Discrimination laws warns Chris. 

It is usually not possible, or advisable, to force an employee to use up annual leave for any days they miss due to travel issues, although your employees may wish to nominate a day as annual leave rather than not receiving any payment for it. 

Sometimes, an employee may say they cannot come to work due to school closures forcing them to stay at home and look after their children. If the school was closed at short notice, this would be likely to constitute an emergency relating to a dependent, in which case they would be entitled to time off to arrange care for their children. This type of leave does not have to be paid, although an employer may choose to have a different policy. 

So what is the situation if you close the office because it is inaccessible, or not enough staff are able to make it in? Withholding pay when employees are unable to work through no fault of their own could be an unauthorised deduction from wages or a serious breach of their contract of employment. It is for this reason we suggest a temporary ‘lay-off’ clause in Contracts. With this in place you can refuse to pay full pay to employees for a limited time and for days when the workplace is not open. 

If your business is likely to be adversely affected by travel disruption we recommend that you put a policy in place covering what is expected of employees if the weather prevents them from getting to work says Chris. This will ensure that there is no confusion regarding non-attendance and how it will be treated during bad weather. 

For advice on this or any other employment related issue why not give us a call on 01202 611033, we promise to provide advice that allows you to achieve what you want to achieve whilst staying on the right side of the law.


Brexit and the Settled Status Scheme

One could be forgiven for thinking that the UK Government has at least got its forward planning right to overcome the problem the most likely outcome of the Brexit negotiations is that the right to freedom of movement will go. Today (Monday 21 January 2019) sees the start of the third phase of testing for the government’s settled status scheme has opened, with approximately 3.5 million EU nationals expected to apply to continue living and working in the UK. So far about 31,000 have gone through the system in phases 1 and 2 says Chris from Expert HR Solutions. That means approximately 28,000 applicants will have to be processed every week to meet the deadline of 30th June 2021. 

This latest stage of the rollout is only open to those with a valid passport as opposed to a national ID card and applicants must be able to download the Home Office app for Android phones. The scheme will be fully open by 30 March 2019. 

Thanks to a last minute change the application cost of £65 will no longer apply, although we understand you may have to claim it back as the App has not been changed. The Brexit process is generating huge amounts of uncertainty and Employers will have to carry out right to work tests on all EU employees again post Brexit, it makes sense for employers to consider picking up this cost as it’s not a massive amount of money, it shows positive intent to your employees and you will be able to claim it back. 

Employers can’t force staff to apply for settled status, but they can certainly encourage their staff to make their applications in a timely way and they can support with documentation to support applications, says Chris. It is obviously much easier for larger organisations with dedicated HR departments, but urged all businesses not to overlook or side line the issue. Expert HR Solutions will happily do what we can to help but sadly we use Apple products so do not currently have access to the Home Office App, nevertheless give us a call on 01202 611033 for some advice.

A Case of be Careful what you Wish for?

Was the Union case to get Tribunal Fees unlawful on the grounds they denied justice to those that couldn’t afford them a case of be careful of what you wish for asks Chris Wilkinson from Expert HR Solutions? It would now appear that with cases up by around 165% compared to 2017 and the number of judges reduced as a result of an almost equal and opposite fall in cases whilst Tribunal fees were in place there are Courts where hearings are now being scheduled into 2021. It is hard to see how having to wait 2 years for a hearing is a step forward says Chris. 

Chris says whilst the ideal is to stay out of the Tribunal process completely, if that’s not possible, one thing for employers to do is gather and collect all notes and documents they can ahead of the tribunal hearing, adding that gathering the necessary evidence to defend a case can be more difficult the longer employers wait and collecting documents early can also decrease legal spend as it can keep employers “ahead of the game” in bringing evidence before solicitors. 

There are plans to increase the number of judges by 54, but it is questionable whether that increase will significantly reduce waiting times. One possible way for Employers to reduce the wait would be to Settle out of Court via a Settlement Agreement or settle under the ACAS mediation which remains in place. While this may be good practice to get rid of the claim, it calls into question whether these delays are prohibiting access to justice, as neither party may have the opportunity to put forward their case where the matter is resolved through a settlement for reasons of time. The use of Settlement Agreements, particularly in cases of sexual harassment have been questioned as they often contain non-disclosure agreements. The use of these clauses is subject to a Government enquiry and the deadline for responses to these has been extended to 31st January 2019. 

If you want advice on this or any other employee issue you are facing why not give us a call on 01202 611033, the first 30 minutes is FREE.

Workplace Legislative Changes

The Government has announced new legislation to be introduced soon which will give workers on zero-hour contracts, agency employees or “gig economy” workers better protection says Chris Wilkinson from Expert HR Solutions.

The reforms are based on the findings of a review into modern working practices led by Matthew Taylor, a former aide to ex-PM Tony Blair. The key changes are:

* ensure firms will have to provide a “statement of rights” on the first day of a person’s employment, setting out what paid leave they are entitled to, including for illness, maternity and paternity leave;

* workers would also be given the right to request more predictable hours;

* close a loophole that had allowed agency staff to be paid less than permanent employees;

* increase the maximum fine employers face at a tribunal from £5,000 to £20,000, if they are found to have demonstrated “malice, spite or gross oversight;”

* ensure that companies will have to calculate holiday pay based on 52 weeks, as opposed to 12 weeks, so people in “seasonal or atypical roles get the paid time off they are entitled to.”

As always with employment law changes the devil will be in the detail says Chris, but for now employers should look at their Recruitment and Selection policies and processes to see what, if anything, they need to change to meet the first day Statement of Rights requirement. If you employ Agency staff then you should undertake a benefits comparison exercise. In the absence of any further guidance it would seem prudent to use the legal reasons for declining a flexible working request for any request for more predictable hours.

There is a legal definition of ‘Malice’ which I “harmful intent,” there is no similar legal definition of ‘Spite’ or ‘Gross Oversight,’ so we will have to await the actual legislation to see if that helps or potentially even case precedent says Chris. He also hopes that the legislation will be more precise in defining the number of weeks in a year as 365/7 = 52.14 not 52.

If you as an employer want help with this or any other employment issue why not give us a call on 01202 611033, your first 30 minutes is FREE says Chris.

The 2018 Budget

Chris Wilkinson from Expert HR Solutions looks at the implications of the 2018 Budget for SMEs. Read on if you want to find out more.

The Chancellor said that Employment Allowance was introduced to incentivise businesses to take on employees. He continued that at a flat rate of £3,000 per employer, it does not provide any real incentive for larger employers, So, from April 2020, we’ll target it at small and medium businesses with an Employer NICs bill under £100k a year.

He said that he had explored all avenues to address the cliff edge effect of VAT registration, but our options are restricted by EU law.  As our future VAT regime becomes clear over the years ahead.  To give small businesses certainty the threshold will be unchanged for a further two years.

The off payroll working rules known as IR35 are designed to ensure fairness, so that individuals working side by side in a similar role for the same employer pay the same employment taxes. Last year, we changed the way these rules are enforced in the Public Sector.  But widespread non-compliance also exists in the private sector.  So, following our consultation, we will now apply the same changes to private sector organisations as well but only from April 2020 and we will only apply them to large and medium-sized businesses. Chris comments that it would appear the Chancellor’s definition of medium sized is a business with more than 50 employees.

The minimum contributions from April 2019 to Pensions Auto enrolment schemes will be 3% by the employer and 5% by the employee, assuming the employee is enrolled in the scheme.

At the same time the National Living Wage will rise from £7.83 an hour to £8.21 an hour for workers aged 25 an over, representing an above inflation rise of 4.9%.  It was also announced that the minimum wage for other age groups will go up; from £7.38 to £7.70 for 21-24 year olds, from £5.90 to £6.15 for 18-20 year olds and from £4.20 to £4.35 for 16-17 year olds.  The statutory rate for apprentices aged under 19 or in the first year of their apprenticeship will increase by 20p an hour to £3.90.

Those businesses with significant road transport costs will be relieved at a further year of freeze on fuel taxes.

 

Cautionary TUPE Tale

 

Yet again employers involved in a TUPE transfer have managed to get themselves into trouble in a TUPE transfer. The law in this area is complex if only because of the number of case precedent rulings says Chris from Expert HR Solutions, we would always advise that both the Transferee and the Transferor companies seek expert advice well before any consultations with staff or their representatives take place he continues. In this case, an employee with work relationship difficulties was dismissed two days before a TUPE transfer was unfairly dismissed.

The employee was employed as a cashier by a wine and beer business (the Transferor). When the company encountered financial difficulties another company (the Transferee) agreed to purchase its stock and take on any employees on the basis that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) applied to the transaction.

The Transferee assumed responsibility for the employment contracts of all existing Transferor employees with the exception of the employee, whose employment was terminated.

According to tribunal documents, a Transferor director had met with “six or seven” employees to talk about their future employment in the run-up to the business being sold. The employee was the last to meet with the director, and her employment was terminated on 9th December 2014. The transfer of business took place a couple of days later on 11th December.

The employee brought proceedings before an employment tribunal claiming unfair dismissal, as well as redundancy pay and notice. She insisted the principal reason for her dismissal was the transfer. She added that neither business wanted her to transfer because she had a strained working relationship with a colleague.

The Transferee argued that the employee had objected to a transfer in the 9 December meeting, and the liability for her claims remained with the Transferor. The tribunal rejected this argument.

The tribunal heard that according to the Transferor’s director, the employee stated she was not happy to work for the Transferee and did not wish to transfer. The director regarded this an objection to the transfer, and her employment was terminated for that reason.

But the judge rejected the director’s evidence as she considered there were “significant” discrepancies between his written and oral evidence. The ET ruled in favour of the employee, concluding that she would have transferred but for her dismissal. As such, it concluded the reason for Kaur’s dismissal was the transfer.

The Transferee appealed the ruling, arguing the reason for the dismissal was entirely personal to the employee and not related to the transfer. The EAT dismissed the appeal and upheld the ET’s ruling.

It ruled the ET did not err in finding the reason for Kaur’s dismissal was the transfer notwithstanding the fact there were ongoing relationship difficulties between her and a colleague. In his ruling, Mr Justice Choudhury added: “An issue affecting an employee’s conduct or competence, if suddenly acted upon at the point of transfer, is unlikely to be the sole or principal reason for the dismissal.”

Chris says the judgment should remind employers that a TUPE transfer cannot be used as a way of getting rid of ‘problem’ employees. Nor, he continues can employers pick and choose which employees transfer. It also serves as a reminder that issues relating to conduct or capability must be dealt with as they occur. Finally he says that at expert HR Solutions we always ask employees who are objecting to the transfer to write a letter to the employer stating that they object to the transfer and realise that as a result their employment will terminate on the date of the transfer and that they will not be entitled to any financial compensation. We also advise all such meetings are conducted by two people so that there is a witness to what was said.

If you would like advice about this or any other employment issue give us a call on 01202 611033, your first 30 minutes are FREE.

Dates for your Diary

Or perhaps that should be dates for my Diary says Chris from Expert HR Solutions as many of these will require changes to Contracts of Employment and in some cases to Policies. We thought you might be interested in the Governments current timetable for changes to Employment Law in the UK. Plainly to a certain extent this is dependent on any political changes that may happen and on the outcome of the Brexit negotiations and future Trade Agreements (or not) with the European Union.

If you are a retained Client we will remind you again closer to the event, and in most cases amend your documentation accordingly as part of your retainer.

If you are not a retained client and would like documentation like this to be kept up to date for you why not give us a call on 01202 611033. We are sure you will be pleasantly surprised how little it will cost and more importantly how much time it will save you to get on with what you are good at, growing your own business.

Should Tribunal Fees be reintroduced?

The government has said it intends to bring back employment tribunal fees, scrapped last year by the Supreme Court. Ministers have admitted to getting the balance between access and affordability wrong but it says that these discourage “vexatious” claims. In this blog, Chris Wilkinson from Expert HR Solutions Ltd. tries to explain the arguments both for and against.

With the introduction of fees there was a very significant reduce in the number of cases brought to tribunal. Opponents of the fees argue that relatively low value claims were obliterated because if an employer owes you, for instance, £500 employees felt that it was not worth paying £160 to pursue that claim. Supporters of the fees argue that if this was the issue then that is an argument for changing the system such that the tribunal automatically adds the Tribunal fee to any award in the event of the case being heard against the Respondent.

The argument that some people didn’t have the money to spend on Tribunal claims is surely an argument for making the system to help low earners avoid the fees much simpler say supporters.

Supporters of the fees argue that they deterred a large number of frivolous claims. The facts do not appear to support this argument as the number of cases that were unsuccessful dismissed or withdrawn remained broadly the same before during and after the fee structure was in force. Opponents say this simply isn’t true because lawyers see tiny number of cases where there is little if any chance of success, and that there is already a mechanism for weeding out on worthy claims which tribunal is able to impose deposit and cost orders on claimants. They continue that what the fees did do was allow employers who might previously have settled cases to take a harder attitude because they knew employees could not afford to take them to Tribunal.

It is the case that the large fall in caseload following the introduction of fees was followed by an equal and opposite large increase in cases following their withdrawal. This increase has resulted in an increase in waiting times so supporters argue that you need fair and proportionate fees in order to eradicate frivolous cases and reduce waiting times. One suggestion to achieve this is to introduce a sliding scale of fees similar to those charged by County Courts.

As always if you have any questions about this or any other article published by Expert HR Solutions then call us on (01202) 611033, we look forward to hearing from you.

Brexit and EU Workers

If you employ or are intending to employ EU nationals you need to read this says Chris Wilkinson from Expert HR Solutions. Assuming we do not crash out of the EU with no agreement then the introduction of the new settled status will mark the end of freedom of movement for EU citizens in the UK.

From 1st July 2021, EU citizens and their family members in the UK must apply to hold lawful UK immigration status under a new ‘settlement scheme’. An implementation period will run between 29th March 2019 and 31st December 2020, during which time there will be no change to EU citizens’ current rights. At the end of the implementation period in December 2020, settled status will replace permanent residence status.

EU citizens and their family members with settled status will have the right to remain in the UK indefinitely and have access, as they currently do, to healthcare, pensions and other benefits in the UK.

Until the new status has been passed into law, and we don’t currently know whether it will and if it is then when it will become law the rights and status of EU citizens in the UK remain unchanged. This includes the attainment of permanent residence status after five continuous years of exercising Treaty rights, and the requirement for proof of permanent residence as a mandatory prerequisite for EEA nationals applying to naturalise as British citizens.

EU citizens and family members living in the UK for five continuous years by 31st December 2020 will have until 30th June 2021 to make a settled status application to remain in the UK indefinitely. Those who are in the UK by 31st December 2020 but have not attained the requisite five-year qualifying period will be eligible for ‘pre-settled status’. With this, they are permitted to stay in the UK until they have reached the five-year point, when they should apply for full settled status.

Close family members will be able to join an EU citizen relative in the UK after the end of the implementation period, provided the relationship existed on 31st December 2020 and continues to exist when the individual comes to the UK. This includes spouses, children and other dependants, as well as future children.

Applications will cost £65 for those aged 16 or over and £32.50 for children under 16. Those who already hold a valid permanent residence or indefinite leave to remain document will be able to transfer to settled status free of charge.

For UK employers, the new settled status raises a number of considerations. EEA national personnel may have questions about what to do and whether they qualify for the new scheme, or they may wish to secure permanent residence status before the new system comes into force. Ensuring your workforce has access to up-to-date information will help to inform and reassure them of any concerns.

With the new scheme will come an inevitable need to police EU citizens’ immigration status. We expect this will fall to UK employers as part of their Right to Work

document checks, following an update to the Home Office’s lists of acceptable documents.

From an HR compliance perspective, now is a good time for employers to ensure all relevant organisational policies and processes (recruitment, onboarding) are compliant with Right to Work duties and do not discriminate against individuals on the basis of nationality, and that relevant personnel are adequately trained and skilled to perform the document checks correctly.

If you want help with this or any other aspect of employing people then give us a call on 01202 611033.