Basic Steps to Help You Keep On Top of Sickness Absence

We are often surprised at the number of small employers who have no system for recording sickness absence.  Some will ensure that they ask for medical certificates if the period of absence exceeds 7 calendar days (in accordance with the Statutory Sick Pay (SSP) rules) but many do not have any sort of recording tool for short-term absence.

The problem for employers who do not record absence is that they find themselves in a difficult position if and when they feel they have a problem with an employee taking too much time off.  If this has not been recorded, all they have is a general feeling and a problematic lack of evidence.

Sickness recording systems do not need to be complex. All that is required is a simple form to record the dates of absence and the nature of the illness/injury.  A simple spreadsheet can then be used to record it for each employee and the form can be filed in their personnel file (make sure it is kept securely).  It is then just a case of having a look at the spreadsheet on a regular basis (e.g. quarterly) to see if anyone is taking a lot of time off.

If you feel one of your employees is taking too much time off sick, you are then able to address this with them by showing them the record and having a discussion about it.  At this stage you would deal with it informally to try to find out whether there may be any underlying cause (which could indicate a disability and a need to tread carefully), or whether they are just the sort of unlucky person who is frequently sick (or perhaps the sort or person who goes off sick at the slightest snuffle, or even perhaps someone who "swings the lead").  The outcome of the meeting would normally be an informal warning to explain that you expect an immediate, substantial and sustained improvement in their attendance or you will need to consider commencing disciplinary proceedings on the grounds of capability (or under a separate capability procedure if you have one).  Unless you had clear evidence you would not be questioning whether the sickness absence is genuine, it would be a case of explaining that the business is unable to sustain this level of absence which is why you need to address it.

That is often enough to nip the problem in the bud.  If staff know that you are going to address their sickness absence, they may well think twice before calling in sick unless absolutely necessary.

Other tools that can help change a lax sickness absence culture are:

• return to work interviews every time someone comes back from a period of sickness absence no matter how short
• strict rules about phoning in when they are off sick (e.g. phone calls to the boss, rather than a message via a colleague, or a text message)
• paying SSP only (although you would need to ensure you were paying in accordance with any contractual obligation)

Right to Time Off to Accompany Partner to Ante-Natal Appointments

The partner (male or female) of a woman expecting a baby will be entitled to unpaid time off in order to accompany her to up to two ante-natal appointments.  The employee does not need to have worked for you for any particular period of time, it is a right that they enjoy from day one.  

There is no minimum notice requirement in the legislation, but it does state that an employer will only be liable where it has "unreasonably refused" a request for time off.  This suggests that a tribunal may find that an employer has not unreasonably refused a request where it has been presented at the eleventh hour and it is not practicable to find cover for the time off requested at such short notice. 

Whilst some employers may feel that they do not wish to advertise this new entitlement to their staff, they may wish to consider including it in their staff handbook and encourage employees to make their request in a particular format and by giving as much notice as possible.  If an employee then breaches this written policy and is refused their request, it is unlikely that the refusal would be found unreasonable in all the circumstances.

Government Aims to Bolster Apprentice Pay

In recent years the number of apprenticeships has risen sharply and they have become more attractive to employers as the previously tough contractual protections afforded by apprenticeship agreements have been watered down.  As long as the apprentice contract contains appropriate clauses it can be treated in a similar vein to other employment contracts, with apprentices needing two years' service, like other employees, to be able to claim unfair dismissal.  Previously it was almost impossible to make an apprentice redundant without breaching their contract; that is no longer the case.

Apprentice pay is another factor that some employers will consider attractive.  An apprentice is currently only entitled to £2.73 per hour*, which reflects the fact that they are benefiting from on the job training as well as working.

However, the Business Secretary, Vince Cable, recently announced his wish to bolster apprentice pay in order to make the apprenticeship route more attractive to young people.  He has asked the Low Pay Commission to consider how apprentice pay could be improved, suggesting that it be brought in line with the 16 and 17 year old National Minimum Wage rate in October 2015.  That rate is currently £3.79 per hour.

(* N.B. Apprentices aged 19 or over are entitled to the regular National Minimum Wage rate for their age group after the first year of their apprenticeship.  They can be paid the apprentice rate during the first year.)

Funding available to help your business to grow

The Government's Growth Voucher programme allows you to receive up to £2000 towards strategic advice to help grow your business.

This could be put towards KSA advice and assistance - perhaps a one off HR project or staff development, updating your contracts, an HR Audit or any other strategic HR planning.

If you have:

• 49 employees or less
• Are registered in England
• Have been trading for at least 1 year and
• Have not had any paid for strategic business advice in the last 3 years

For more information visit Growth Vouchers or speak to one of our team.

Are You Paying Enough for Holidays?

As anticipated in January's update, the European Court of Justice has followed the Attorney General's opinion in determining that workers' holiday pay should reflect any additional payments they would normally receive had they been working.  This includes paying commission or compensating for the lost opportunity of earning commission whilst on holiday.

Under the Working Time Directive, the aim is to ensure that staff are not deterred from taking leave.  In this case (British Gas v Lock) Mr Lock was a salesman on a basic salary with variable commission which was paid a month in arrears.  When he took leave he would be paid his basic pay whilst he was away, plus any commission owing from the previous month, but then he would lose out on commission the following month due to the fact that he was not selling whilst on holiday.

It has been left to the national courts to determine how this pay should be calculated, and it is likely to be some time before our Working Time Regulations are updated accordingly.  In the meantime, now that we have this ruling, employers should consider taking steps to address the issue as they could face costly claims for back pay at some future point.

Many employers already have to work out holiday as an average over the 12 weeks preceding the holiday period (i.e. where employees have variable hours and/or pay), so it seems sensible to conclude that a similar averaging approach to commission would be likely to meet these requirements.

How will the Ban on Zero Hours Contracts Affect You?

In the recent Queen's speech, the Government announced its intention of "...cracking down on abuse in zero hours contracts".  It has subsequently published the Small Business, Enterprise and Employment Bill 2014, which will now start its progress through the parliamentary process.

The Definition of a zero hours contract in the Bill, to paraphrase, is one where the undertaking of any work under the contract is conditional on the employer offering work, and where there is no certainty that the employer will offer any work.  The Bill goes on to say that any clause in a zero hours contract which prohibits the employee from doing work for anyone else, or where they have to obtain permission from their employer to do so, is unenforceable.

So there is no problem with having a zero hours contract, as long as there is no exclusivity clause in the contract.

The use of casual contracts, therefore, is unaffected.  This is where the work is very ad hoc and there is no obligation on the employer to offer work and none on the employee to accept any work offered.  Typically these are used for plugging gaps in staffing due to illness or holidays.

It also seems that any employers who want a loop-hole, can get round this restriction by guaranteeing a minimum amount of work under the contract - perhaps just one hour per year! That would mean that it would not be a zero hours contract as defined, so the ban would not come into effect.

It seems likely that there will be regulations coming out at some point to beef up the restrictions to some extent, and the Bill does leave that possibility open.  So watch this space for more detail as it emerges.

Will We All Become Flexible Workers?

Currently parents and carers have the rights to request flexible working.  From 30th June this right will be extended to all employees as long as they have at least 26 weeks' continuous employment.

Flexible working could include reducing hours of work, changing work patterns, entering into a job share arrangement, working from home, etc.  As part of the application for flexible working, the employee needs to explain what effect, if any, the change requested would have on the employer and how they believe it could best be dealt with.  For instance, if requesting part-time hours, they could identify that there will be a lack of cover on the days they would not work and suggest that this could be dealt with by recruiting another part-time employee to cover those hours.

The employer must meet with the employee to discuss their request in a timely manner (unless they are happy to make the change requested).  If the employer feels they may not be able to accommodate the requested change, they should explore any possible compromises.  The employer should inform the employee of their decision as soon as possible, it is sensible for this to be conveyed in writing.

Much of the procedural requirements have been removed by the new legislation - the prescriptive timetable, the statutory right to be accompanied at meetings, and the right to an appeal.  Instead the employer needs to "...deal with the application in a reasonable manner" and to ensure that whatever process they follow, it is completed within three months of receipt of the application (including any appeal if granted by the employer). However, in order to demonstrate reasonableness, it is sensible to retain some of the previous statutory provisions in an internal procedure and a new ACAS Code of Practice recommends that you do so.

We would suggest, therefore, that you should continue to allow the employee to be accompanied by a work colleague at any meetings and have the right to appeal if their request is rejected.

We would recommend that the reason for turning down a request is made clear in writing and you must ensure that it falls within one of the following categories:

• the burden of additional costs
• an inability to reorganise work amongst existing staff
• an inability to recruit additional staff
• a detrimental impact on quality
• a detrimental impact on performance
• detrimental effect on ability to meet customer demand
• insufficient work for the periods the employee proposes to work
• a planned structural change to the business

Any agreed change is normally permanent, unless the employer and employee agree a temporary arrangement or to have a trial period.  Also employees can not make more than one statutory request for flexible working in any 12 month period.

Changes to Flexible Working

Changes to Flexible Working, Shared Parental Leave and Pay and Antenatal Appointments

The Children and Families Act 2014 is due to come into force on 30 June 2014.

The main implications are:

1. The right to request flexible working will be extended to all employees with 26 weeks' service from 30 June 2014. Currently the right is limited to parents of children aged under seventeen or, if disabled, under eighteen or to "carers". Also employers will no longer need to follow the statutory procedure contained in the Flexible Working (Procedural Requirements) Regulations 2002. Instead, they will be allowed to use their current HR procedures but they must consider requests in a reasonable manner. ACAS has drafted guidance to help you prepare for these changes.
2. There will also be a new right of shared parental leave and pay. This means that if mum chooses to end her statutory maternity pay or leave early, eligible working parents can share the remainder of the leave and pay (capped at 50 weeks of leave and 37 weeks of pay). This is due to come into effect for babies due and children placed for adoption on or after 5 April 2015. From October 2014 a pregnant woman's husband, civil partner or partner, the parent of a pregnant woman's child and intended parents in a surrogacy situation will be entitled to take unpaid time off work for up to two antenatal appointments. 

Will Pre-Claim ACAS Conciliation Reduce Tribunal Claims?

New Rules to Promote Settlement of Employment Claims 

  

From 6th April 2014 prospective claimants will have to contact ACAS and allow them to promote settlement before being permitted to lodge a claim with the Employment Tribunal.  Whilst parties will not be forced to engage in conciliation, they will have to wait until the process has been exhausted before going any further, giving ACAS the opportunity to explore the possibility of settlement.

The normal conciliation period will be one calendar month, but an ACAS officer can extend this period by a further 14 days if he or she believes that there are realistic prospects of a settlement and both parties agree to the extension.  However, the ACAS officer could also cut short the conciliation period if he or she believes there are no real prospects of a settlement being reached.

If this process does not result in settlement, the claimant will be issued with an early conciliation certificate containing a unique reference number.  The claimant will not be able to lodge a tribunal claim without a valid reference number.

The introduction of fees in the Employment Tribunal in July last year, resulted in a dramatic drop in the number of claims being presented.  Anecdotally it would appear that the fees regime has made low value or "woolly" claims less likely to occur.  

It will be very interesting to see what effect the new conciliation process will have and whether there may be an increase in these sorts of low level claims being pursued at this stage where there is no cost to the claimant.   

Employment Tribunal Claims Down by Nearly 80%

Tribunal Statistics and the Impact of Fees 

  

Employment tribunal claims slumped by 79 percent in the last quarter of 2013 following the government's introduction of employment tribunal fees.

Many of you will recall that fees for bringing a claim were introduced last summer for the first time, with employees having to shell out £1,200 for claims of unfair dismissal or discrimination. The qualifying period to claim for unfair dismissal has also now increased from one year to two years.

The team here at KSA has concerns.... Kate's view: "Clearly, the introduction of fees has prevented a number of employees from bringing claims to an employment tribunal.  Which for many is seen a good thing. However, if employees feel that they aren't able to pursue claims in an employment tribunal they may look to do so in other ways, such as joining trade unions to follow issues through. The work we do within organisations is about promoting positive working environments and only time will tell if this is a constructive step towards promoting a productive working culture."

The recent statistics can be viewed here.

Significant Changes to TUPE for 2014

Summary of changes relating to TUPE

At the start of the year, we thought we'd take some time to go through some key changes that you need to be aware of that are happening in 2014. The Government's timetable is always changing, but here's a summary of the changes relating to TUPE that are intended to take place at the end of the month.

TUPE

Significant changes to TUPE will come into force on 31 January 2014, including:

*        Obligations relating to provide employee liability information will remain, but the information will need to be given 28 days rather than 14 days before the transfer.

*        Change of work place location will be an Economic, Technical or Organisational (ETO) reason. Therefore genuine place of work redundancies will no longer run the risk of being automatically unfair.

*        Service provision changes will remain in place. However, the law will be clarified as to when a service provision change will apply.  For TUPE to apply the activities carried on after the change must be 'fundamentally or essentially the same' as those carried on before it.

*        Changes to terms and giving protection against dismissal will no longer apply to changes made for "transfer-related reasons".

*        Micro-businesses will be allowed to inform and consult with their employees directly where there is no recognised independent union or existing appropriate representatives.

For further information, and to talk through any of these issues that may be affecting your business, please do get in contact with us on 0845 9000 899.