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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.

Thursday
Nov212013

CONTENTIOUS COMMENTARY 

Mediation

Silence is not golden

Ignoring a suggestion of Mediation is unreasonable.

Halsey V Milton Keynes General NHS Trust (2004) 1 WLR 3002 decided that while a Court cannot compel a party to mediate, it can “robustly encourage” mediation, including by depriving the successful party of costs because it refused unreasonably to mediate.

In PGF II SA V OMFS Company 1 Ltd (2013) EQCA Civ 1288, the Court of Appeal congratulated itself on the durability of the rules laid down in Halsey, but acknowledged that PGF raised a slightly different issue. The Defendant had not actually refused to mediate; instead, D had ignored two invitations to mediate. The parties exchanged Part 36 offers but, when D found a new point at the door of the Court, C accepted D’s Part 36 offer. Since the acceptance was out of time, C would ordinarily be required to pay D’s costs from the time of the offer (CPR 36.10 (5)). A Court will only depart from this if the Court considers the normal Order unjust (SG V Hewitt [2012] EWCA Civ 1053).

In PGF, the Court of Appeal said that silence in the face of an invitation to mediate is always unreasonable. This is therefore a rare instance of the Courts laying down a strict rule, here motivated by the policy of encouraging mediation. This policy required a salutary rule to force parties to consider the possibility of mediation. A party won’t be allowed to invent retrospectively reasons why it would have refused.

However, the Court stressed that an unreasonable refusal to mediate is only one factor in the Court’s decision as to costs. The first instance Judge had deprived D of its costs from the time of the offer because of D’s implicit refusal for mediation, but did not order D to pay C’s costs for that period. The Court of Appeal considered that this was correct and that it would only be in the most serious and flagrant cases (e.g. where the Court itself has suggested Mediation) that a Court would order a mediation recalcitrant to pay costs. On the facts, the Court of Appeal considered that the Judge may even have gone a bit far in depriving D of all its costs after the offer, but did not overturn the decision because it fell within the legitimate area of judicial discretion. A salutary rule at the first stage, but not at the second; ultimate discretion is therefore restored.

However, the bottom line remains that if the otherside proposes mediation, you must respond. Refusal is risky. Is it better to waste the time and cost of going through a mediation that you think will be futile rather than, by declining to mediate, to give the other side an argument that you should not get your costs if and when you win? The cost of a failed mediation can be recovered in costs. And if you aren’t confident of success, mediation may be helpful.

Source – Lexology 

Wednesday
Nov202013

Is your pay and holiday pay calculation right?

Getting pay right is not always straight forward. In recent years there have been many cases concerning holiday pay and entitlement for employees who are sick whether short or long term. This is not the only area where problems can arise though in establishing the correct interpretation of the law that regulates this area. Two recent cases which look at pay could have significant implications for employers and employees alike.

National Minimum WageWhittlestone v BJP Home Support Ltd – Employment Appeal Tribunal

Mrs Whittlestone was a care worker who was required to work shifts which in this case meant a series of visits to service users determined by rota. She was paid £6.35 an hour for the time spent providing care to the service user. Additionally, Mrs Whittlestone was expected to cover some overnight  ‘on call shifts’ under threat of disciplinary action if she was not available for these. The pay for these ‘sleepovers’ which ran from 11.00p.m. to 7.00a.m. was £40 per night.

The case looked at two important issues that can arise in work of this type; pay for periods spent traveling to and from each service user and pay for the ‘sleepover’. 

Mrs Whittlestone claimed that she should be paid the National Minimum Wage for travel between assignments other than at the start or end of the day and also for the eight hour period of the sleepover. The claim was not successful in the Employment Tribunal and she appealed.

After detailed consideration of the facts of the case and the relevant law the Employment Appeal Tribunal found that both the claims were successful.

When considering the travel the Judge stated that:-

“ the fact that the contract called each separate visit a ‘shift’ does not have the consequence that this was the same arrangement as if the Claimant had been starting work at her employer’s premises at the start of an 8 hour shift or thereabouts and returning home after. She was on a rota and obliged to visit each service user in turn during the course of the day, and there inevitably was travelling time between each visit.” 

Accordingly she was held to be entitled to National Minimum Wage for this time.

The same conclusion was reached for the sleepover on the basis that:-

“The evidence was that there had been agreement between the employer and the Claimant that she would work; she would have been disciplined if she had not been present throughout the period of time; she could not for instance slip out for a late night movie or for fish and chips.”

The conclusion was again that National Minimum Wage was due for the period even though in fact the Claimant was never actually called upon to provide any services to the service users during the time she was sleeping. It was sufficient that she was at the employer’s disposal during the periods and required to be there.

Holiday Pay and Overtime - Neal v Freightliner Ltd – Employment Tribunal

It is widely accepted that all full time employees are entitled to a minimum of 5.6 weeks paid annual leave but what is not always so clear is how that week’s pay for the time taken off as holiday should be calculated. The calculation is relatively straightforward for employees who work the same hours each week but for those who do not have regular hours or work overtime it can be more challenging.

The case of Neal v Freightliner Ltd concerned an employee who had a ‘basic’ 35 hour week but who was also required to work overtime when necessary and who regularly did. His week’s pay for the purposes of holiday was worked out with reference to the 35 hour basic rate which was less that his usual working hours each week and he claimed a higher amount in the Employment Tribunal.

His claim was successful. While acknowledging that voluntary overtime was excluded from the calculation of a week’s pay, the Tribunal found that:-

 “As the claimant’s duties were to perform his contractual obligations as a MSO, then the work which he carried out as overtime and at weekends was at all times the performance of tasks which he was required to carry out under his contract of employment. The fact that he may have volunteered to perform these tasks at times outside those which he contracted to do not mean that the performance was at those times no longer “intrinsically linked.””

He was entitled to be paid on the basis of all earnings in this case. 

Comment

Both of these cases were dependant on the facts and wording of the contracts. However, both have potentially huge implications in the amount of pay that may be being routinely unpaid. It is likely that both these cases may be appealed and the Employment Tribunal judgment in Neal v Freight Liner is not binding unlike the Employment Appeal Tribunal judgment but, as things stand, it may be worth reviewing pay arrangements in light of these cases to consider if there may be a claim or to seek advice to clarify the correct interpretation of existing contracts.

 

 

If you have any questions on this article or employment law generally please contact me, Sarah Everton at se@kidwellssolicitors.co.uk