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Tuesday
Jan142014

Financial Penalties for Employers 

In November 2011 the Government announced its intention to proceed with a series of measures to:

  • encourage the early resolution of disputes in the workplace;
  • deliver a more efficient and streamlined Employment Tribunal system for all users, and
  • give employers more confidence to hire new staff – supporting growth.

2013 saw a number of changes to the Employment Tribunal system as changes set out in the Employment law 2013: progress on reform   were introduced through the Enterprise and Regulatory Reform Act.

in July 2013 Compromise Agreements became Settlement Agreements and the additional protection to parties for discussions around Settlement Agreements were introduced. At the same time Employment Tribunal fees were introduced and there were changes to the ‘cap’ for unfair dismissal awards.

The first raft of changes were perhaps weighted in favour of employers as they made it more costly for employees to issue a claim thus increasing the pressure to settle or not issue at all.

The second stage of the reforms are due to be introduced on 6th April this year. These will include ‘early conciliation’ (see earlier article Early Conciliation - What is this? ) but also the ability of Employment Tribunals to impose financial penalties on employers who lose in the employment tribunal.

Employers who lose at tribunal may be penalised for breaching employment law and may be ordered to pay a financial penalty of 50% of any financial award, with a minimum threshold of £100 and a maximum cap of £5,000.  There will be 50% reduction of the penalty if it is paid within 21 days.

The Tribunal will have a discretion in when to impose the penalty and will do so where there are ‘aggravating factors’. The factors are not set out but may include breaches that are:

  • deliberate
  • malicious
  • repeated
  • prolonged

Factors such as being a small business, a new business or one with limited human resources can weigh against this discretion being exercised.

Unlike the uplift of up to 25% which can be made where an employer does not follow the ACAS Code of Practice which is paid to the successful employee, the financial penalty amount is set at 50% and is paid to the Consolidated Fund (the government's general bank account in the Bank of England).

The first round of changes could be seen as discouraging employees from issuing claims and addressing the commonly held belief among some parties that employees will ‘ have a go as they have nothing to lose’ before fees were introduced.  The planned second round of changes could then be seen as encouraging employers to settle as the costs of going all the way, perhaps to discourage other employees from issuing claims, can be considerably increased should they lose particularly if they have also breached the ACAS code and have to repay the fees that the employee has paid to issue the claim and for the hearing.

These are the sticks and carrots that are being used to drive claims away from Tribunal and towards settlement. The question for the next year is will this be successful and if so, will it be at the expense of justice for Claimants and Respondents?

Sarah Everton
Director  Employment  Department

Friday
Jan102014

Early Conciliation – What is this?

ACAS pre-claim conciliation has been available to employers and employees for many years and was expanded in 2009 to encourage settlement. It has been a popular arrangement but there was no duty on either the employer or employee to try to conciliate through ACAS before issuing a claim.

From April this year Early Conciliation will be introduced and all ‘prospective’ claimants must send certain information to ACAS before they can issue a claim. ACAS has a duty to conciliate and try to promote a settlement and only if this fails will they be able to issue a claim. ACAS will continue to be able to conciliate if a claim is issued if the parties request it or the conciliator thinks that a settlement may be achieved.

As the pre-claim process is going to be mandatory certain steps must be followed and demonstrated:-

 

  • Step 1: The prospective claimant must send "prescribed information" in the "prescribed manner" to ACAS.
  • Step 2: After an early conciliation support officer has made initial contact with the prospective claimant and confirmed that they wish to proceed, the claimant's information is sent to a conciliation officer.
  • Step 3: The conciliation officer must try to promote a settlement within a "prescribed period".
  • Step 4: If a settlement is not reached, either because the conciliation officer considers that settlement is not possible, or because the prescribed period expires, the conciliation officer must issue a certificate to that. The prospective claimant will be unable to pursue most tribunal claims without this certificate.

 

ACAS have provided some information on this process on the website and drafts of the Early Conciliation Request Form and Early Conciliation Certificate can be found as annexed to Early Conciliation: Government Response to consultation on proposals for implementation .

This additional step will make it even more essential for any potential claims to be considered early. We will keep you updated as the introduction date approaches and will be happy to answer your questions.

Sarah Everton

Director Employment Department 

Wednesday
Jan082014

Employee Handbooks

I am often asked about the importance of Employee Handbooks and what should be included so I thought it would be useful to share my advice in this article, providing a list of recommended policies and procedures to include.

Please note Employee Handbooks are not a one size fits all. Policies should firstly be tailored to the individual needs of the business and be there to provide clear and helpful guidance to employees.  Secondly to rely upon if disciplinary action is necessary or an issue turns contentious and you need to evidence and justify the business' actions.

Being an Employment Lawyer when advising clients I always think about the possible end result -: Tribunal.  I then work backwards as to how I can best protect my clients. Think about common or likely issues that could arise and the necessary rules the Company would need to publish to make it clear the standards expected of employees and how actions may be dealt with if standards are not met.

Don’t leave space for ambiguity or expect employees to know about a specific policy if they have never actually been told about it. Keep an eye on what’s happening in the world, or even more precise, Employment Legislation. Everyone knows Social Media is the latest craze to cause problems for employees, and this will only continue for the foreseeable future. If you have a tailor-made Social Media policy that employees are aware of and have had training on, you may just be able to avoid problems that are inundating the Tribunals at present.

Remember the Handbook should be guidance only and as a general rule not contractual. Of course you may wish some policies to be contractual; this is for the business to consider and another reason as to why Handbooks cannot be generic.

Of course with a good Handbook comes good HR Practice. As employers you must remember to act reasonably at all times and in accordance with Employment Law and published guidance.

I hope my list below will help focus your mind or at least alert you to the fact you may need some assistance. 

  • Adoption
  • Adverse Weather
  • Annual Leave Policy
  • Anti Bribery Policy
  • Absence and timekeeping Policy
  • Bring your Own Device
  • Capability Procedure
  • Communication Policy
  • Compassionate, Bereavement and Domestic Emergency Leave
  • Data Protection
  • Dignity at Work Policy
  • Disciplinary Procedure
  • Dress Code
  • Email, Internet & Social Media Policy
  • Equal Opportunities Policy
  • Flexible and Homeworking Policy
  • Grievance Procedure
  • Harassment and Bullying
  • Health and Safety
  • Hospitality and Gift
  • Inductions
  • Maternity
  • Mobile Phones
  • Parental Leave
  • Paternity Leave
  • Pensions Policy
  • Performance Appraisals
  • Proof of Eligibility to Work in the UK Policy
  • Public Duties Leave
  • Recruitment Policy
  • Redundancy Policy
  • Retirement
  • Sickness Absence
  • Stress
  • Subsistence and Travelling Expenses Policy
  • Substance Misuse and Smoking
  • Training and Development
  • Whistleblowing
  • Working Time Regulations 

If you have any questions or would like to discuss your Employee Handbook further, I'd be happy to help. Please just get in touch. 

Rebecca Hardy
Head of Client HR

Tuesday
Dec102013

Surviving the Festive Season after Separation or Divorce.

The Office for National Statistics reported that there were 1.9 million lone parent families at the beginning of 2013.  During the build up to Christmas the media bombards us with scenes of ‘the perfect Christmas’, as two parents sit with their two children and open presents, surrounded by plentiful decorations, a roaring fire and ample food.  Unfortunately, this is not the reality for a great many families as they face their first Christmas after divorce or separation.

There are many ways to try and cope with the change a divorce or separation can bring, especially when there are children involved.

 

  1. Plan – Christmas is an exercise in planning and preparation whoever you are.  When there are two Christmases to organise, planning is the only way.  Whether it is the food, childcare arrangements, travel or present buying, communication with the other parent can ensure that both households give the children a Christmas to remember.  In particular, try and co-ordinate the children’s presents, ensuring that they do not end up with two of the same, a simple email can resolve who is buying the children which gift.
  2. Budget – Do not be tempted to overspend in order to compensate for the separation or divorce.  This will only add to any anxiety when you should be enjoying your time with your children. 
  3. Plan something special - Try and plan an adventure, go on a winter picnic, take a trip somewhere special or have a barbeque in the snow!  Children remember these things just as much as expensive gifts.
  4. Arrangements – Christmas can be a whole season and not just one day.  Never ask your children to choose where they would like to go.  Try and be flexible with when you have the children, try not to panic if you aren’t going to see them on Christmas Day, make another day just as special and sell the children the idea of having two Christmases instead of one! 
  5. Christmas Traditions – make new ones.  If you are having your children at a time that does not coincide with your old traditions, make new ones.  Go to a light display, dress the tree together or make decorations.  The repetition every year will create a lasting memory of a new tradition for you and your children. 
  6. Routine - If you face a different Christmas from the one that you are used to, then vary your routine and avoid any reminders that will add to your anxiety.  If you used to watch a film every Christmas Eve, perhaps go out with friends, hold an open house drinks party or volunteer for a Charity.
  7. Create Memories – Whenever you have your Christmas celebration and whoever you share it with, take lots of photos and create an album.  An album can be a positive reminder that you survived the change and can be something to give to your children when they are older.
  8. Gather Support – Should you be facing Christmas without your children or newly single, seek out the support of friends and family.  Surrounding yourself with those people who care about you, will help you get through a tearful ten minutes whereas alone this could lead to a longer period of feeling low.  Immerse yourself in the celebrations with others.
  9. Strength in Numbers – If you are feeling in a celebratory mood, others in the same situation may benefit from your strength.  Host a drinks evening and perhaps invite other Divorcees or newly separated parents and support each other through the festive season.
  10. Attitude – Try to be flexible and co-operative as much as you can.  Having a positive outlook and attitude will only serve to improve your Christmas and New Year.  Most importantly, take care of yourself.  Alcohol can intensify low feeling and anxiety, keep in control at all times and take one day at a time.  Do enjoy yourself!

 

Should you need advice on family, children or matrimonial issues then contact Jo Thurlow Director of Kidwells Family Law Department on 01432 278 179 or email jt@kidwellssolicitors.co.uk

For further information on single parents, divorce and parenting issues, the following websites may be useful:

www.gingerbread.co.uk

www.divorcesupportgroup.co.uk

www.theparentconnection.org.uk

 

Wednesday
Dec042013

Sickness and Work – what to expect for 2014

It has been nearly a year since the government published Fitness for work: the Government response to ‘Health at work – an independent review of sickness absence’.  The review recognised the benefit of work and that rather than protecting sick employees from work an early return  to work was more likely to protect their long-term health and wellbeing.

A key proposal in this response was the introduction of a Health and Work Assessment and Advisory Service. This Service which is expected to be launched in spring 2014 will make occupational health expertise more widely available to employees and employers and will include:

  • State-funded assessment by occupational health professionals for employees who are off sick for four weeks or more;
  • Signposting to appropriate interventions including Universal Jobmatch, an online jobsearch service for those employees who are able to work, but unlikely to return to their current employer;
  • Case management for those employees with complex needs who require ongoing support to enable their return to work.

The Response acknowledges that more than assessment is needed if an effective service and intervention would form part of the structure of assistance. Some larger employers already have occupational health provision at work and the new service would sit alongside this.

Managing sickness absence and any underlying causes, whether short or long term is an important part of maintaining an efficient business.  Employers can take active steps to help their employees remain healthy through wellness programmes that actively promote good health by providing facilities or encouraging lifestyle changes.

Kidwells are stepping in this direction with their Kidwells Lifestyles Gym which will be available to their employees as well as external gym members.

That said employees do become unwell and employers will avoid the problems of presenteeism by encouraging sick employees to stay away from work when they are unwell. Absence with an underlying cause such as stress, bullying or long term medical issues should not be ignored and the sooner the underlying issues is addressed and steps taken to return the employee the better.

If you would like to discuss any concerns about sickness absence from work or how it can be managed please contact Sarah Everton at se@kidwellssolicitors.co.uk .

If you would like to see how the gym is progressing see HERE or contact Kidwells for further details and a visit.