Unison’s NHS members vote to strike

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Unison’s 300,000 members have voted to strike over a continuing pay dispute. It is the first time in more than three decades NHS workers have decided to strike over pay.

In a ballot, 68% voted for strike action and 88% indicated they would be willing to take industrial action short of striking. As of yet no date has been set for the proposed action.

The ballot was called over health secretary Jeremy Hunt’s decision to ignore the recommendations of the NHS Pay Review Body earlier this year.

The body advised the government to offer all staff a blanket pay rise of 1%. Instead, Hunt opted to offer workers incremental pay increases, which meant only those at the top end of the pay increments are guaranteed any kind of pay award.

Unison general-secretary David Prentis called the strike an example of “anger turning into action”.

“Refusing to pay them even a paltry 1% shows what the government really thinks about its health workers. Inflation has continued to rise since 2011 and the value of NHS pay has fallen by around 12%,” he said.

“We know health workers don’t take strike action lightly or often. The last action over pay was 32 years ago.  But we also know a demoralised and demotivated workforce isn’t good for patients.”

He stressed that any action would include steps to “minimise the impact to patients”.

NHS Employers director of employment and reward Gill Bellord said she “remains hopeful” an agreement can be reached before the proposed strikes take place.

“Employers need to maximise their ability to retain staff and plan changes to how they work in response to the changing needs of patients and major financial challenges have made stark choices inevitable,” Bellord said.

“We need to remember that staff and patients have benefited hugely from the positive industrial relations climate that has existed in the NHS for a generation. I know that NHS organisations and trade unions – and indeed our patients – will not want that to be lost.”

 

Addressing dress codes: ACAS guidance on dress code policy

ACAS has this week issued new guidance on dress code policy at work. The new guidance includes guidance on tattoos and body piercings and religious dress which should be considered when drafting or updating employee dress code policy.

A dress code policy must not unlawfully discriminate and must apply equally to men and women (although standards may differ), and reasonable adjustments must be made for disabled employees.

The new guidance requires employers to have ‘sound business reasons’ for implementing dress code policies, so it will be important to consider the reasoning behind policies when drafting or updating them. The guidance does not, however, provide employers with any specific examples of ‘sound business reasons’ (save for health and safety), but sets out key points to consider.

Tattoos and body piercings

The guidance shows some understanding to employers wishing to promote a certain image through their employees and specifically states that the employer may request staff remove piercings or cover tattoos whilst at work to promote such images. Employers must, however, have a business reason for doing so and any such requirements should be stated in a policy and communicated to all staff to ensure understanding of the standards expected of their employees.

Religious dress

The area of religious dress should be treated carefully. Employers should allow employees to wear such clothing as required by their religious faith and will need to justify any reasons for prohibiting staff from wearing any items of clothing to ensure that they are not indirectly discriminating employees wishing to reflect their religious faith in their clothing choices. Restrictions as to clothing will, as before, need to be for a sound ‘business reason.’ Recent legal decisions on religious dress have stated that people should be allowed to demonstrate their religious faith through their dress. The “Crucifix Case” heard in the European Court of Human Rights in January 2013 is a good example of this and suggests that employers should allow employees the right to wear religious dress unless there is a valid business reason stating otherwise.

See the ACAS Guidance on Religion or belief and the workplace for further information.

This article has been drafted on HR Legal Service’s behalf by Ashfords LLP Solicitors. Ashfords LLP is one of HR Legal Service’s strategic legal advisory partners and provides certain services to our customers through a range of different Legal and HR support services offered by ourselves to the corporate market.

The content of this article does not constitute legal advice and it should not be relied upon. Specific legal advice may be required to address your specific circumstance.

What happens when the administrator is called?

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Recent high-profile examples of companies going into administration such as Woolworths and Phones 4u has brought the process into the public consciousness. It causes distress to the workforce, and this impact is a major consideration for the company when considering administration options.

It’s important that HR directors understand what happens when the administrator is called in, so that they can fully participate in discussions with management and know how to handle employees’ concerns.

There are three key administration objectives, set out in The Insolvency Act 1986:

1. Rescuing the company as a going concern or;

2. Achieving a better result for the company’s creditors as a whole than would be likely if the company were wound up or;

3. Realising property value by distributing it to creditors.

The administrator of a company acts in the interests of the company’s creditors. He or she may seek to sell off part or all of the business to new investors always with the overall aim of keeping the business trading and employees in their jobs.

Insolvency is never good news for employees. Knowledge of a business becoming insolvent spreads rapidly through a company and staff will be concerned about their future. Administrators understand the distressing impact of administration on both employees and employers and are willing to work closely with businesses to minimise the impacts.

The Department for Business, Innovation & Skills, through the Redundancy Payments Office (RPO) provides guidance on redundancy for employers and employees on its website and in the booklet called Redundancy & Insolvency: A guide for Employees.

However, the RPO is responsible only for statutory redundancy payment and other statutory guaranteed debts payable from the National Insurance Fund when an employer becomes insolvent.

It is important for HR managers to familiarise themselves with this information so that they are able to advise employees accordingly. During the administration process, HR staff will often be requested to address workers’ concerns. These are the most frequently asked questions:

1. What are my rights when the business of our employer has been transferred under administration to a new entity or purchased by an existing business?

When such a transfer takes place the rights of employees and employers are governed by TUPE regulations.

Broadly speaking, the effect of the regulations is to preserve the continuity of employment and terms and conditions of those employees who are transferred to a new employer.

Under TUPE, the buyer will assume full responsibility for all employees and all the obligations of their current contracts. The buyer may choose to re-negotiate terms of employment but can only do so in the normal way with full consultation.

If the buyer chooses to make anyone redundant after the sale of the business goes through, then the employees in question are deemed to have continuity of service from when they were first employed in the original business.

2. How does the administrator choose who stays and who goes?

There is always the possibility of redundancies following administration. The administrator will seek to follow the rules on consultation and should liaise with union representatives, management and senior staff before making a final decision.

However, it is not always possible to follow the consultation process fully where certain branches are being closed down, or the administrator has been appointed at very short notice with no funding for wages, and so on. In these circumstances, redundancies can be made without notice or consultation as a last resort, but employees will be able to claim for lack of consultation at a tribunal.

3. My employer is insolvent and I have been made redundant. I am owed wages and holiday pay. How do I get my money?

An employee can usually claim ‘Redundancy and Payment in Lieu of Notice’. In some cases, the government will pay the claim on behalf of the company, taking this from the company settlements at a later date.

Certain statutory limits will apply to employees’ claims, currently capped at £450 per week. Employees who are contractually paid more than this have a claim filed against the company, which is dealt with in the course of the administration or subsequent liquidation.

Remember, when a business goes into administration it does not always mean that employees will lose their jobs, even if there is a sale of the company. HR directors should familiarise themselves with regulations so that they can work with business owners and the administrator to find the best result for employees.

This article is published courtesy of HR magazine and was written by Melissa Jackson (pictured) a director of the corporate recovery and insolvency department at CBW accountants. 

 

Legal experts call for tribunal fees review

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Unions and employment law experts are united in calling for a review of tribunal fees after Ministry of Justice (MoJ) figures revealed cases have fallen 70% since their introduction one year ago.

Figures revealed by the TUC reveals sex discrimination cases have seen the biggest decrease (91%), followed by unfair dismissal and unfair deduction from wages (both 74%).

Early conciliation was introduced in April to further reduce the number of employment disputes that go to tribunal. TUC general secretary Frances O’Grady called its introduction a “welcome step”, but claimed that it could not explain the long-term fall in tribunal numbers.

“The fees system is a victory for Britain’s bad bosses who are getting away with harassment and abuse of workers,” she said.

“Tribunal fees are pricing workers out of justice and have created a barrier to basic rights at work. The government has put Britain in a race to the bottom that is creating an economy based on zero-hours jobs and zero-rights for workers.”

Irwin Mitchell partner Fergal Dowling said the figures will buoy Unison’s legal case in its attempt to have fees ruled illegal.

He added that shadow business secretary Chuka Umunna’s speech calling for the fees to be rescinded is worth looking into.

“Recent calls by the scrapping of employment tribunal fees by the Labour Party need to be balanced by the needs of business, but we believe the time is right to review the systems and ensure it is operating in a fair way for all,” he said.

Meanwhile Kingsley Napley head of employment law Richard Fox warned the figures show there is a “serious question of access to justice”.

“This is the third successive round of statistics showing the number of claims to the employment tribunal being very significantly down on where they were before the Fees Order came into force in July a year ago” he said.

“We really have reached the situation where many voices are coming together to say something must be done.”

 

Hot topic: Scottish independence, part two

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What impact would a ‘Yes for independence’ vote have on employers in Scotland? Would it lead to greater freedom, or a potential talent drain? In part two of this Hot Topic, founder and CEO of M8 Group, Kevin Hague (pictured), argues for the Union.

The Union has existed for 307 years and this is a one-way ticket: if the Scots vote for independence there’s no going back.

I’m founder and CEO of ecommerce company M8 Group and we’ve thrived serving the UK market from a Scottish base. We employ 98 people and have featured as a Sunday Times Fast Track 100 company.

A simple factual observation: if Scotland becomes independent then the remainder of the UK becomes an export market. That means our addressable domestic market shrinks by 90%.

Now I have no fear of export markets, but export trade (particularly B2C trade) involves complexities and contingent risks that domestic trade is immune from. Two obvious headline examples are currency and trade barriers, such as EU membership.

There isn’t room here to cover all the arguments but we can summarise a couple of major points. First, there is a risk that over time an independent Scotland will end up using a different currency than the rest of the UK. And there is a chance that either Scotland or the rest of UK may be in the EU, and the other out.

To protect our businesses against these risks we would relocate our operations to where 90% of our sales go. Jobs would move from an independent Scotland to the rest of the UK.  We’re not unusual; a recent Treasury report estimated that 10% of Scottish jobs dependent on trade from the rest of the UK would be “in danger”. The financial services and defence sectors have been highlighted as particularly susceptible.

Polls consistently suggest it will be a ‘No’ vote but if it is ‘Yes’ then it will have major effects, not least for HR professionals and other business leaders.

This article is published courtesy of HR magazine.

 

 

Hot topic: Scottish independence

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On 18 September, Scotland will vote whether to remain part of the United Kingdom, or to go it alone as an independent country. What impact would a ‘Yes for independence’ vote have on employers in Scotland? Would it lead to greater freedom, or a potential talent drain?

HR magazine asked two business experts for their views. Here, Russell Brimelow (pictured), a partner at law firm Lewis Silkin, shares his views on how independence could impact on employment law.

“In the recent televised debate over the future of Scotland, Alex Salmond argued that voting ‘yes’ “tells the world that Scotland is an equal nation that carries itself with confidence and self-belief”. If Scotland does vote for independence, the self-belief that Salmond describes will likely see the country make several legal reforms.

Change will no doubt be in the offing when it comes to employment law. Although plenty depends upon which party is in power, the current Scottish government’s whitepaper provides an insight into what the future may hold for an independent Scotland.

Firstly, the country’s government has committed to ensuring that the national minimum wage rises in line with inflation. It has also backed the living wage campaign, but has not yet said it will make the wage a legal requirement.

When it comes to human rights, the Scottish government is proposing a written constitution setting out key principles, which could include the right to equality of opportunity. In addition, it intends to consult and potentially legislate on a target for female representation on company boards. The fostering of a collaborative approach between government, employer and employee associations has also been promised. Other possible changes include action on zero-hours contracts and changes to immigration policy.

The programme is clearly wide-ranging, but there is still the matter of the referendum as well as any ensuing election before we can know the future for Scottish employment.

Even as we await answers, employers should assess the diversity of their leadership team and consider how it could be improved. They could also review whether they pay the living wage. And if trade unions are to be given more of a voice, employers might want to reflect on the nature of their relationship with them.”

Check back tomorrow for our second piece on this topic.

This article was published courtesy of HR magazine.

 

Managing difficult employees: how do you solve a problem like Mario?

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Mario Balotelli has joined Liverpool FC after the club agreed a £16 million fee with AC Milan. But, in an unusual step for a footballer, his contract has good behaviour clauses.

Described by José Mourinho as unmanageable, Balotelli is a controversial figure, having clashed with most of his managers during his brief career.

The striker’s new contract allegedly includes clauses that require him to adhere to a strict code of conduct or face disciplinary and financial sanctions. Liverpool have taken a gamble on Balotelli due to his unquestionable talent. But this raises the question: what can employers do when faced with a similar problem employee?

Personality clashes in the workplace, irreconcilable differences between colleagues, or dealing with an employee’s behavioural issues can create significant problems for any employer.

The tribunals have held that where an employee’s difficult personality substantially disrupts the business, or impacts upon that individual’s behaviour towards colleagues and clients, an employer is entitled to dismiss them.

Any such dismissal is not regarded as being on the grounds of conduct (as you might expect). Instead, it is a dismissal for “some other substantial reason”. This is because the reason for the employee’s termination is not their conduct per se, but rather the fact that the parties simply cannot work with each other.

Employers need to exercise caution when dealing with difficult individuals. Where an issue arises due to the conflicting opinions or beliefs of employees, and those opinions or beliefs are protected by discrimination legislation (for example, they relate to religion, race, sexual orientation, disability or any other protected characteristic) employers must be careful not to expose themselves to discrimination and/or unfair dismissal claims.

So, what can employers do to protect themselves?

1. Investigate apparent personality clashes or disruptive behaviour fully. An employee may be acting out for valid reasons (for example, if they are struggling with stress, personal issues or being bullied). This may affect what action you adopt in the circumstances, how you approach the individuals involved and how you discuss their behaviour with them.

2. If employees are not getting along, consider inviting them to attend workplace mediation, either with a member of your own HR team or an external HR consultant. This will enable the employees to air their issues with a view to finding a constructive way forward.

3. It may be appropriate to relocate employees. Consider internal or external secondments, or a sideways move. Discuss this openly with the individuals involved, and be careful not to expose yourself to any allegations of favouritism, marginalisation or having demoted someone. If you do so, you will run the risk of the affected employee resigning and claiming constructive unfair dismissal or alleging discrimination.

4. Consider whether it is appropriate to change an individual’s line management or departmental structure if they are struggling with particular people in their team.

5. Make sure you have well-drafted anti-bullying and harassment policies in place (if you do not already) and operate a zero tolerance approach. There can often be a fine line between personality clashes and bullying/harassment. It is important to send a clear message to staff.

6. Include well-drafted disciplinary and grievance policies in your staff handbook. If there isn’t a handbook, consider having these policies in place anyway, to afford you and your staff certainty.

7. Include suitable notice, termination, payment in lieu of notice, suspension and garden leave provisions in your employment contracts. This gives you maximum flexibility to terminate an individual’s employment if appropriate.

8. Also consider including a “good behaviour” clause in your contracts. This will state exactly what may happen in the event of employees acting out or bringing your business into disrepute.

9. If you genuinely believe that there is no other option available but to dismiss an employee because of their personality or behavioural issues, implement a fair dismissal process and be sure to document your reasons for termination, including how their continued employment is having (and would have) a significant impact on your business, other members of staff, customers, suppliers, workplace morale, goodwill, and so on.

10. Finally, if you are unsure seek legal advice before taking any action so as to guard against the risk of a disgruntled employee issuing proceedings against you. This risk should not be underestimated.

This article is published courtesy of HR magazine and was written by Francesca Lopez (pictured), an employment lawyer at Kingsley Napley

 

Acas figures could prompt tribunal fees rethink

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Employers and their staff successfully using Acas’s early conciliation service might make the government rethink the level that they set tribunal fees, according to Kingsley Napley head of employment law Richard Fox.

Fox was commenting on figures released this week by Acas that show 17,145 people used the early conciliation service from its introduction on 6 April to the end of June.

The service, intended to lessen the amount of tribunals by settling disputes between employers and their staff early, was voluntary in April. During this month about 1,000 people contacted Acas about their cases.

When it became mandatory in May the figure jumped to 1,600 and wad similar in June.

Fox told HR magazine the scheme has had an “encouraging start”. He suggested that if the success continues, the effect of “relieving pressure” from the tribunal system may mean the government looking at the level at which they set the tribunal fees.

The fees were introduced last October. For an individual to bring a claim against their employer, it currently costs between £160 and £250, depending on the type of case raised.

Fox said if early conciliation continues to be a success the government might consider “taking its foot off the accelerator” on fees.

“Fees were initially introduced as a way to lower the number of cases brought and relieve pressure on the tribunal system,” he said. “Early conciliation is perhaps a better way to do this.

“The government possibly overcooked the fees when they were brought in. The level seemed high to employers and experts alike. If the numbers keep coming down through early conciliation it could mean them reviewing their options.”

Discussion over legal action

CIPD employee relations adviser Mark Emmott welcomed the news that early conciliation is apparently helping people to resolve disputes without reverting to tribunals.

“Although these figures don’t allow firm conclusions to be drawn about the impact on claims volumes, it looks increasingly possible that early conciliation will transform the process of dispute resolution by encouraging employers and employees to resolve issues by discussion, rather than by legal action,” he said.

Irwin Mitchell employment partner Fergal Dowling pointed to figures that suggest only 7% of staff and 9% of employers have rejected the offer of early conciliation.

“These statistics point to a positive start for early conciliation. It is too early to judge what the impact will be on the future numbers of employment tribunals, but employers will no doubt be encouraged and welcome these findings,” he said.

 

What to do about holiday pay?

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The European Court of Justice (ECJ) has issued its much anticipated decision in the case of Lock vs British Gas. As many predicted, the court held that commission payments must be taken into account when determining holiday pay.

The European Working Time Directive gives employees the right to four weeks’ paid annual leave. However, it does not confirm which elements of a worker’s remuneration should be included in holiday pay, or how it should be calculated each time leave is taken.

A salesman on a basic salary with variable commission brought a tribunal claim in respect of the commission he could not earn while on leave. The ECJ held that commission payments should be included in calculating holiday pay, as otherwise workers may be deterred from taking annual leave.

What about other payments?

Although this case only refers to commission payments, other types of payments, such as overtime, may have to be treated in the same way.

The Lock judgement referred to sums “linked intrinsically to the performance of tasks that the worker is required to carry out” under his or her contract. This is arguably wide enough to include voluntary overtime, where it is frequently available and there is a degree of reliance by both parties that such overtime will be offered and accepted.

How should holiday pay be calculated?

The ECJ in Lock has referred this question back to the UK tribunal. Under the UK Working Time Regulations, the holiday pay of workers with no normal working hours is calculated as an average over the previous 12 working weeks. It remains to be seen what approach the tribunal takes in respect of workers with normal working hours. It may well adopt the same calculation, but could equally choose a different reference period or another method entirely.

The judgment only applies to the four weeks’ holiday provided by the European Working Time Directive. It does not cover the additional entitlement provided by the UK Working Time Regulations (currently a further eight days for full time workers) or any further entitlement in an employee’s contract. It applies to all workers, not just employees.

What is the practical impact?

Employers need first to consider the cost implications. They will have to identify which of their workers may be entitled to recover holiday pay arrears, and the amount in each case.

Claims may go back years if a series of occurrences can be established. The precise starting point remains to be established, but could be as early as 1998, when the Working Time Regulations were implemented, or later depending on where the claim is raised (five years before the last deduction in Scotland, six in England). Accurate personnel records will be essential.

Employers will then have to decide if it is prudent, and indeed affordable, to address the issue now or to wait and see what claims are made. Unions are likely to want to begin a dialogue about potential resolution immediately.

It will also be necessary to change payroll systems to recalculate holiday pay in future, and businesses may have to consider ways to offset enhanced payments to workers by amending or removing other benefits.

This article is published courtesy of HR magazine and was written by Brian Campbell (pictured), a legal director in the employment team of law firm Brodies

 

One in four ‘exaggerate’ expenses claims

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One-quarter of employees have knowingly “bent the rules” when filing expenses claims, according to research by Webexpenses.

The survey of 1,000 UK office workers also found that one-fifth said they do not feel guilty about exaggerating claims.

Men are more likely to intentionally file inaccurate claims – 28% have admitted to doing so compared to 22% of women. One-third of 16- to 24-year-olds have submitted false claims, ­making them the least honest age group.

Meals at meetings and travel expenses were some of the most common items people admitted to lying about. Nearly half (42%) said they would claim for the mileage to a client meeting and then back to their home rather than their company’s headquarters.

Workers in arts and culture sectors are the worst offenders. Almost three-quarters (72%) have made exaggerated claims compared to just 7% in the legal sector.

One-quarter of employees agree that the longer they have been with a company the more likely they are to try and get away with inaccurate claims. This may be because 70% say their submissions have never been checked or verified.

Webexpenses chairman Michael Richards told HR magazine the problem can be exacerbated if it goes unchecked early in an employees’ tenure.

“A lot of it is about the culture,” he explained. “If people come in and see others doing it they will automatically follow suit. There’s an element of people not wanting to rock the boat. But often people claiming expenses are more senior, so it becomes difficult to challenge.”

Richards advocates a zero-tolerance approach to false claims. He adds that HR has a big part to play in implementing this.

“The line managers are maybe too close to their team so it will be harder for them to challenge this,” he explained. “It has to come from the top to be successful. HR needs to support leaders in making sure exaggerating claims is not part of a company’s culture going forward.”