HR professionals want real-time absence reporting


Two-thirds of HR professionals would like to be able to access real-time information on employee absence, according to research by MidlandHR.

However, the survey of 120 HR professionals from the private, public and not-for-profit sectors also found a lack of consistency in how absence is reported.

There is particular confusion over defining the cost of absence to the business. While 56% of organisations refer to the employee’s salary including allowances and benefits (and extra costs like NI, pensions and insurance costs have been incurred), 41% use a combination of salary plus allowances, benefits and on-costs. Only 3% base the cost on the employee’s salary alone.

Most HR professionals (65%) say managing absenteeism is a combined effort of HR and line management.

MidlandHR sales and marketing director, Richard Thomas advised the manager and HR director to “work together to create a clear strategy around absence management”.

“Absences need to be monitored and if there are patterns it needs to be addressed,” he said.

Thomas also recommended that businesses embrace flexible working to reduce absence rates.

Government estimates suggest allowing flexible working can lead to a 38% drop in absenteeism, and save businesses £55.8 million.

“People will give you more if you give them flexibility,” said Thomas. “They will feel beholden. They recognise trust and over-compensate to give back.”

Employees planning for retirement sooner due to pensions freedoms

pension saving

Over a third (34%) of employees will think about planning for retirement sooner as a result of new freedoms, according to research by NEST.

This rises to 40% among people aged 22 to 30. New pension rules allow people over 55 to withdraw money from their pension pot when they choose, and 25% of what they withdraw will be tax-free.

According to NEST Insight 2015, 16% of respondents wanted only a guaranteed income (for example, an annuity). Around one in five (19%) said they would use some of their savings as guaranteed income, and would invest the rest in a way that creates additional revenue.

A further one in five (20%) indicated that they would take some (13%) or all (7%) of their pension pot as a cash payment.

Commenting on the report, a spokesman from Hargreaves Lansdown said the new freedoms “have reinvigorated interest in retirement planning”.

“We wouldn’t go so far as to say pensions are sexy now but they’ve certainly become more attractive,” they added.

The NEST research also found that auto-enrolment is perceived as a good thing by the majority of respondents. Over three-quarters (77%) thought it was a good idea, compared to 68% in 2013.

Three-quarters of employers noticing impact of auto-enrolment

pension saving

Three-quarters (75%) of employers are noticing an administrative impact of auto-enrolment, according to research from Close Brothers Asset Management.

Pension scheme auto-enrolment is gradually being introduced over six years, and began in October 2012.

Worryingly, only 34% of employers are confident that they have complied fully and have robust systems in place to deal with auto-enrolment. Less than half (46%) believe they are adequately dealing with requirements.

Richard Wilson, policy lead for defined contribution at NAPF, said: “Automatic-enrolment is a great opportunity to get people into the habit of saving for their retirement. But we must not forget that employers are also vital to the whole process, especially because they will be choosing the scheme, implementing the systems and responsible for compliance and communications.”

“This can prove a challenge for some employers, especially SMEs, who may not have the in-house resource available to deal with pensions issues, which is why it is important they seek the right support,” he added.

Maxine McIntyre, head of corporate proposition at Close Brothers Asset Management, said there is growing concern that businesses need to do more to meet and exceed their employer duty.

“In the long term, auto-enrolment will bring with it more business benefits than complications, once the initial administrative bridge has been crossed,” she added.


Work Foundation urges employers to make absence policies more flexible


Employers need to increase the flexibility of sickness absence policies, according to a report by Lancaster University’s The Work Foundation.

Two in five (40%) employees could suffer from a chronic or fluctuating condition by 2030. The paper argues that for those living with conditions where the symptoms fluctuate – such as asthma, depression or rheumatoid arthritis – the quality of support received varies too much.

Karen Steadman, senior researcher at The Work Foundation, said fluctuating health conditions are a threat to the resilience of UK businesses.

“The introduction of statutory part-time sick pay and growing income protection would go a long way to supporting those with fluctuating conditions,” she said. “However, it is essential that government also impacts upon workplace culture and practice, to ensure that employers fulfil their obligations to help employees.”

The report, Fluctuating Conditions, Fluctuating Support, recommends developing a best practice database of adjustments and supports for people with fluctuating conditions, and improving access to specialist occupational health support.

Chief executive of Disability Rights UK Liz Sayce said that when it comes to the rights of people with an impairment that changes week-to-week, or even hour-to-hour, their right to adjustments is often ignored.

“Many of our members tell us they want to work but need flexibility and tailored support to do so,” she said. “With that support they could avoid long-term unemployment. For others, pain or fatigue are ongoing and vary in intensity, so working in traditional employment settings would be difficult or impossible.”

She added: “I hope this report will lead to the debate and action that the issue deserves.”

Focus on… reasonable adjustments

A number of recent Employment Appeal Tribunal (EAT) decisions have considered the concept of reasonable adjustments and how this idea should be applied in practice.

What are reasonable adjustments?

Employers are called upon to make reasonable adjustments to working practices and facilities in order to ensure that disabled employees are placed on an equal footing to non-disabled employees.

Precisely how far adjustments are reasonable is one of the key issues when dealing with cases in this area.

Reasonable adjustments and redundancy

The case of Dominique v Toll Global Forwarding Ltd considered reasonable adjustments in the context of a redundancy situation.

In the case, the EAT concluded that an employer will fail in their duty to make reasonable adjustments even if the redundancy dismissal would have occurred whether or not the adjustment was made. In reaching its decision, the EAT considered that the dismissal was not the only disadvantage or detriment which a disabled employee could suffer due to a failure to make reasonable adjustments. For example, a low score could cause the disabled employee to suffer injury to feelings.

Mr Dominique (D) was employed by Toll Global Forwarding Ltd (TGF) in the charging department and was responsible for invoices. As a consequence of suffering a stroke, however, D became slower at completing his work. When D’s manager was instructed to reduce the charging team by one person, D was informed that he was in the pool for selection and selection criteria had been established.

The selection criteria were heavily weighted in both productivity and accuracy and D therefore received the lowest score and was selected for redundancy. D appealed against this decision and claimed that there had been a failure to make reasonable adjustments to the selection criteria on account of his disability. D’s appeal was rejected and his employment was terminated.

D therefore commenced proceedings at the Employment Tribunal. The ET found that there had not been direct discrimination but that D had been put at a disadvantage due to the selection criteria and the weighting of this. The ET went on to find however that the selection criteria were proportionate and there had been no failure to make reasonable adjustments because, even if D’s scores had been adjusted, he would still have been dismissed. D appealed against this decision.

The EAT agreed that there had been no direct discrimination but found that there had been a failure to make reasonable adjustments and the fact that the outcome would have been the same did not defeat the claim.

What does this case mean?

This decision reiterates the importance of identifying whether reasonable adjustments are required to be made and applying those adjustments, even if they will not change the outcome.

Reasonable adjustments and long-term sickness

Two further recent cases on reasonable adjustments were based on a key issue for employers; disabled employees who have long sickness absences and thereby trigger attendance procedures.

An important issue which HR professionals are often faced with is whether reasonable adjustments are required to be made for disabled employees or whether a discretionary power to disregard some sickness absence is enough.

The first of these cases is Griffiths v Secretary of State for Work and Pensions. In this case Ms Griffiths (G), who suffered from post-viral fatigue syndrome and fibromyalgia, had taken substantial periods off sick. Her employer (SSWP) therefore acted in accordance with its attendance policy which triggered the issue of a written improvement warning.

G raised a grievance against this and requested two adjustments – that her absence period which related to her disability be disregarded and the warning therefore withdrawn; and that the number of days’ absence which would trigger the attendance policy should be increased in the future. G’s requests were refused and she therefore brought claims at the ET.

The ET, by majority, found that there was no requirement to make reasonable adjustments because G did not demonstrate a substantial disadvantage. The EAT agreed and went further to find that the adjustments sought were not reasonable as the purpose of reasonable adjustments is to enable the disabled employee to carry out their work or return to work after disability-related illness. The adjustment sought was instead related to the treatment of her absence by her employer.

In the similar case of General Dynamics Information Technology Ltd v Carranza, a disabled employee © was given a final written warning due to his sickness absence record (he had been off 41.5 weeks in 3 years of employment).

Whilst the employer (GDIT) had previously been lenient with the sanctions it had imposed on C, taking into account his disability, they considered that it had reached the point where formal action was required. C was subsequently off work for two further short periods of disability-related absence which did not prompt any further action by GDIT. C was then off work for three months after suffering a shoulder injury. This triggered GDIT’s formal sickness procedure and C was therefore dismissed. C brought claims at the ET for disability discrimination and unfair dismissal.

Whilst the ET found in favour of C, the EAT overturned that decision. The EAT commented that an employer who has shown leniency in the past should not then be bound to show further leniency in disregarding all disability-related absences. In addition, GDIT were not required to reopen C’s final written warning.

Where do these cases leave employers?

These three cases demonstrate the recent approach of the EAT towards reasonable adjustments.

The cases highlight that whilst reasonable adjustments must be made to allow disabled employees to be on an equal footing in the workplace to that of non-disabled employees, this does not mean that an employer cannot take action when a procedure is triggered.
In particular, an attendance policy which is aimed at encouraging employees who have been absent due to sickness to return to work is likely to be justifiably applied to all employees alike. However, an employer should always be ready to be more lenient towards disabled employees and must be able to demonstrate that, where possible, reasonable adjustments have been made to aid an employee’s return.

This article has been drafted on HR Legal Service’s behalf by Ward Hadaway Law Firm. Ward Hadaway Law Firm 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.

Employment Appeal Tribunal (EAT) decides that Australian employee was entitled to pursue employment claims in the UK

Mrs Lodge was employed by Dignity and Choice in Dying as Head of Finance. She relocated to Melbourne 10 months after commencing employment, with Dignity’s permission, to look after her sick mother. It was agreed that she would work remotely from Australia on a permanent basis but was required to return to London three times a year for work purposes.

Mrs Lodge resigned in 2013 and brought claims for constructive unfair dismissal and whistleblowing. The Employment Tribunal decided that it had no jurisdiction to hear her claims because she was based in Australia. The EAT overturned this decision and allowed her to pursue her claims.

The EAT held that she had a sufficiently close relationship to the UK to bring her case using its tribunal system. In particular, her contract was governed by English law and the work she carried out was done for the benefit of the London head office. In addition, a grievance that she had raised from Melbourne had been handled by the London office in accordance with the UK policy. Her only connections to Australia were that she lived and was taxed there. All her work was for the UK operations of a UK-based employer.

With the increase in remote working, this case provides a useful illustration of how a ‘virtual employee’ has the same rights to bring an employment claim as a ‘physical employee’.

This article has been drafted on HR Legal Service’s behalf by Penningtons Manches LLP Solicitors. Penningtons Manches 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.


Employment tribunal fees: putting a price on justice?


Since the introduction of employment tribunal fees, claims have dropped noticeably. Are they a barrier to employees getting real justice?

Tribunal fees are here to stay, at least for the time being. On 17 December 2014, the High Court rejected a legal challenge brought by Unison to have the charges ruled unlawful.

But this will certainly not be the last word on the matter. Shadow business secretary Chuka Umunna vowed in September 2014 that a Labour government would scrap the charges, which he described as “unfair” and “a barrier to workplace justice”.

One of the main bones of contention since the introduction of fees is the surprisingly high level at which they were set. The combined fees to bring any single case to tribunal fall somewhere between £1,000 and £1,350, much higher than many people estimated after the government’s 2012 consultation.

This prompted Kingsley Napley head of employment law Richard Fox to tell HR magazine in September that the government had “overcooked” the fees, which employers and experts saw as excessively high.

As the general election looms, employment issues are a battleground on which some of the fiercest political battles will be fought. Unsurprisingly, tribunal fees are an area in which the initial skirmishes have already begun.

The Conservatives’ historical tendency to side with big business, coupled with Labour’s traditional ties with trade unions, mean it is an issue where there is daylight between the two major parties.

And earlier this month, a letter from Liberal Democrat employment minister Jo Swinson to Conservative courts and legal aid minister Shailesh Vara revealed it is also one of the first policies that the current coalition partners may openly go to war over.

Swinson demanded an urgent review into the impact of tribunal fees as a reasonable way to reduce the pressure on employers by lowering the number of ‘vexatious claims’ made by staff.

So one-and-a-half years after their introduction, how have tribunal fees become an issue so emotive that the coalition partners are coming to blows before they officially become rivals in 2015?

From the start

The first time the government made their intention to introduce employment tribunal fees public was at the Conservative party conference on 3 October 2011.

Chancellor George Osborne announced plans to charge staff for bringing claims against their employers in an attempt to reduce the number of cases brought, thus saving money for everyone.

One of the claims he made when launching the Ministry of Justice’s (MoJ) political consultation on fees was that employees paying to bring claims would go some way to reducing the £84 million annual public cost of running the tribunal system.

Those who were put off by the cost of tribunals were encouraged to use the early conciliation service run by Acas.

It was reasoned that by focusing on settling more claims before they go to tribunals, employers, workers and taxpayers are all spared costly and time-consuming claims that carry little or no chance of success.

One of the groups the government initially tried to woo with their plans was small business owners. In a speech to the Federation of Small Businesses in December 2011, Osborne addressed early criticism of his plans by claiming those who were against them “[have] never run a small business, or sat up late worrying about a vexatious claim to an employment tribunal”.

The attitude of employment bodies in the early days was largely to wait and see what came out of MoJ consultations to refine the details of the fees. But, as one would expect, the trade unions were unwavering in their criticism from day one.

One of the first official reports to challenge the value of the charges was the TUC’s Priced Out: the impact of employment tribunal fees on access to justice, released in March 2012.

TUC senior employment rights officer Hannah Reed believes even then many people underestimated the impact tribunal fees would have on the number of claims brought, following their eventual introduction on 29 July 2013.

“The extent of the fall in claims since the introduction of tribunal fees has been a major shock for everyone,” she says. “And we believe this puts a huge onus on the government to ensure access to justice is restored for workers – especially those on low pay.”

Falling numbers

The figures do seem to support the view of Reed and the TUC. Thegovernment’s own statistics on the number of cases brought between April and June 2014 (the most recent available at the time of going to press) show a year-on-year fall of 71% in the number of tribunals filed.

DLA Piper legal director Imogen Noons believes this trend is “certainly a worry”.

“Substantially we no longer see claims for unlawful deductions or breach of contracts, the small financial claims brought by people who think they have been underpaid by two or three hundred pounds,” she says.

While Noons calls the Acas early conciliation scheme “helpful”, she warns that due to “sheer volumes” they don’t have the resources to take up the increased workload caused by the vast numbers now turning to the service.

To fee or not to fee

Following the High Court ruling tribunal fees will almost certainly be here until May’s general election. But their future beyond that is far from certain. A Labour government would scrap them completely and the Liberal Democrats look set to oppose them strongly. Whether or not the fees are scrapped completely in the future, the rate will be hotly debated.

The government missed its target of a 12-month review in July 2013 and hasn’t set a date for one to take place. Undoubtedly, pressure will grow to at least lower the amount employees have to pay to bring cases.

In addition to any potential changes in government, the threat of regional devolution could muddy the waters further, according to Eversheds HR director Moira Slape.

“Devolution may prompt the next government to review how the employment tribunal system operates in England and Wales,” she says. “The drive to cut costs in the public sector means the tribunal system is under close scrutiny. Linked to this, the question of the correct level of fees is one that is unlikely to go away.”

As with so many policies brought in since the recession, tribunal fees were an attempt to ease pressure on public spending while stimulating private growth. But while this has happened to some extent, the overwhelming feeling is that on this occasion it has been done at too great an expense to employees’ rights.

Four in five potential parents would consider shared parental leave


Around four in five (83%) potential future parents will consider taking shared parental leave, a survey by the Department for Business, Innovation and Skills has found.

Shared parental leave (SPL) comes into force in April 2015. The new rules allow parents to split 50 weeks of leave and 37 weeks of pay between them in the child’s first year.

Employment relations minister Jo Swinson said this change will benefit employers through greater staff retention and loyalty.

“Parenting is a shared endeavour and couples want more flexibility when they are adapting to the demands of a new baby,” she said.

“Shared parental leave will let couples choose how to share their childcare responsibilities in whatever way works best for them, and enable both parents to spend time developing that vital bond with their baby in the early stages.”

The survey also found that 75% of fathers would have considered SPL if it had been available when their children were born.

Julie McCarthy, head of policy, research and communications at Working Families, said that unless employers offer an enhanced SPL rate – as many do currently for maternity leave – then the actual take-up rate is likely to be much lower.

“There are some big companies looking to have complete equality, giving new fathers the same rights as mothers,” she said. “Without the enhanced rate being applied, many families may find SPL unaffordable.”

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Average waiting time for benefits disputes drops


The average waiting time for decisions on benefits disputes has dropped from 33 weeks to under a fortnight on average, according to data from the Department for Work and Pensions (DWP).

The DWP claims the fall in waiting time is due to mandatory reconsideration, a reform introduced in October 2013 designed to streamline the appeals process. It allows officials to look again at decisions and any additional evidence before a case escalates to an appeal tribunal.

Claimants can now challenge benefits decisions and provide additional supporting evidence for their case earlier.

However, in June the Citizen’s Advice Bureau warned that the changes were “adding an extra hoop to jump through” and in some cases leaving people with no income during the mandatory reconsideration process.

The proportion of people appealing to a tribunal against employment and support allowance decisions has also dropped by 86% between July and September 2014, compared to the same period in 2013.

Work and pensions minister Mark Harper said fewer appeals going to tribunal “avoids protracted and costly procedures for the taxpayer and the claimant.”

“Our reconsideration system now makes sure people who are entitled to benefits get them sooner,” he added.

Tribunal fees deter claimants

Separate research from the Citizens Advice Bureau found that four out of five people having trouble at work are put off bringing cases to tribunal by employment tribunal fees.

The £1,200 fee was introduced in July 2013 and has resulted in a 66% drop in applications for tribunals.


Nearly a quarter of workers request flexible working


About a quarter (23%) of workers have requested flexible working despite more than half (54%) being aware of the government’s right to request legislation, a study by O2 Business has found.

Employees said the main reasons for not taking up flexible working are a lack of trust (chosen by 31% of those polled), a business culture that doesn’t encourage working away from the office (28%) and a lack of technology to facilitate it (20%).

The survey of 2,000 UK workers indicated employer reluctance to embrace the legislation is set to continue, with only 12% of workers believing their organisation would embrace flexible working in 2015.

O2 Business general manager of SMB Paul Lawton said flexible working has many benefits, such as improving morale, raising levels of employer loyalty and productivity gains.