Q: I hear the government is intending to introduce a number of legal changes to improve protection for agency workers and other workers. What do I need to know about this?
A: The Government is committed to ensuring that agency workers (those people who are not directly employed by an employer but are supplied through an employment agency) have increased rights to ensure that they are on a more level playing field with
permanent, directly employed staff.
Q: Why is the Government intending to do this?
A: Because there has been a long-running debate about “atypical” workers (those who are not directly employed and who are typically agency workers). Unions are keen to ensure that they have some parity of rights with permanent direct staff. The Taylor Review published in 2017 set out proposals for improving the enforcement of workers’ rights and the Government have responded by publishing their plans for doing that in relation to agency workers.
Q: So what are the changes?
A: Currently the Agency Workers Regulations exclude agency workers from the right to have the same pay as directly recruited workers, if they have a contract of employment with the agency. The Government is planning to ensure that they have equality of pay. They are also intending to increase from 1 week to 4 weeks the period required to break continuity of employment for the purposes of accruing 2 years service to qualify for statutory redundancy pay and employment rights to claim unfair dismissal. The Government also plans to give workers “day 1 rights” such as a right to have written statement of their terms and conditions, to include eligibility for sick leave and pay and giving other types of paid leave.
Q: What does this mean if I use agency workers?
A: It means that if you use a number of agency workers and wish to break continuity of service by 1 week so as to avoid giving agency workers rights to continuity of employment, then any break of continuity will have to be for at least 4 weeks. Also agency workers will have the right to be given a written statement of terms and conditions on the fi rst day of work rather than within two months. Additionally, paying agency workers less than your own permanent workers will not be permitted.
Q: When will these proposals become law?
A: Later this year at the earliest, date TBC.
Q: What about if I use zero hours contracts?
A: In the future, the Government is proposing the right for people on zero hours contracts to request fi xed working patterns for those who do not have one, after 26 weeks on a non-fixed work pattern.
Q: Are there any other things I need to be aware in the Government’s Good Work Plan?
A: The Government is planning to quadruple the maximum Employment Tribunal fi ne for employers who are demonstrated to have shown malice, spite or gross oversight in breach of employment rights. The penalty will go up from £5,000 to
£20,000. This is designed to give a clear message to employers to behave reasonably towards staff in respect of their employment rights.
A collaborative approach to resolving conflict
Q: Employee Question:
I have worked for a financial consultancy firm for the last 4 years and have been promoted to account manager. I have been in the role for 3 months now, feel very unhappy and am thinking of resigning. I am being criticised for my performance by my line manager and yet I have not been provided with the necessary know how or learning to do the job. My boss avoids verbal communication with me, yet goes out of her way to talk to one of my female colleagues. It looks as if he is discriminating against me with unfair treatment. Can I claim unfair dismissal and sex discrimination?
A: Collaborative Employment Lawyer Answer
The lack of proper communication is what is holding back your progress in the role and the firm getting the best performance for you. Good communication will help to identify what skills you need to perform the role well and how feedback should be provided to you. This is best done through work place mediation; a confidential, voluntary process in which help is provided to people in dispute, to explore and understand their differences, uncover their interests – not just reveal their positions, to find their own solutions.
If your boss is unwilling to even engage in workplace mediation and if the firm’s internal grievance process does not result in a reasonable outcome, then before you resign, you should consider having a ‘protected conversation’ with your employer and seek to resolve the issue through collaborative employment law (CEL) mediation. In order to try to avoid claims for unfair (constructive) dismissal (where an employee justifiably resigns in response to something that their employer has done in the nature of a breach of employment contract, including the responsibility to maintain a relationship of mutual trust and confidence between the employer and employee); and discrimination.
Any tribunal case perpetuates conflict to the point of no return. The case is decided on the weight of evidence and whether one witness appears more credible that the other does, takes between 9 months and 1 year from the start of the claim to the outcome and will be costly for both sides. Instead, CEL puts the control of resolving conflict of issues back into he hands of the people at the heart of the conflict. It aims to shorten the legal process, make it more amicable, less disruptive and less expensive.
Both the employer and employee must choose to use CEL and sign a participation agreement. It is likely that your employer will want to resolve a dispute in this way rather than by tribunal litigation, because of the time, cost and number of people involved, which is a distraction from running their business. Each side nominates their CEL lawyer before a meeting is arranged within 14-21 days. The parties then prepare, with help from the collaborative lawyers, opening statements setting out the resolution they are each seeking to achieve and the CEL lawyers will help both parties to explore areas of agreement, consensus or mutual interest and build on those to try and make sure that resolution is achieved.
If you would like to discuss the issues detailed above, please contact Nick Hobden, on 01322 422540 or at email@example.com. Alternatively please visit our website www.ts-p.co.uk/CEL
A guide to a successful Christmas party
Christmas is around the corner, staff spirits are high, and everyone’s looking forward to a few days off work to spend with family once they’ve had the chance to let their hair down at the annual Christmas party.
Love it or loathe it, this infamous yearly event rarely passes without at least one careless colleague becoming the subject of ridicule in the office because they’ve over indulged.
Major pitfalls include:
- Drinking too much in order to gather the courage to flirt with a colleague you’ve been too shy to talk to. This could constitute harassment
- Drinking too much and driving home while over the limit. This is illegal and could result in your dismissal for gross misconduct
- Drinking too much and telling colleagues what you really think of them. This is likely to severely damage your development within the company, even if formal sanctions aren’t taken
- Drinking too much and letting your emotions run wild. Crying at the Christmas party is not going to do much for the way colleagues view you.
Employers and employees need to remember that employment laws apply to events outside of the workplace, as well as within it. Companies can be liable for incidents of harassment at work social events and staff can face disciplinary action for inappropriate behaviour even if it’s 4 o’clock in the morning and they have no recollection of what happened. A Christmas party is no excuse to let standards of behaviour in the workplace slip. Employers can also be found liable for others who cause offence at the work party, so it’s important they select the after dinner speaker with care!
It’s a tough call for employers. They genuinely want to boost morale and thank the team for their hard work over the past year. But to avoid the risk of employment tribunal claims and the consequent reputational damage, companies need to prepare for festive season parties.
- They should ensure that all employees are invited to avoid any complaints of discrimination and not put any pressure on those who do not wish to attend. They should choose a location that is accessible to all employees and suitable for all ages, genders, religions and those with a disability
- Managers should make staff aware of the behaviour that’s expected and what may happen if it’s not. It is always helpful to remind employees of the relevant policies and procedures that are in place
- Finally, employers should make clear what’s expected of the staff the morning after the night before. If a Christmas party falls on a week night, then employees need to remember that the next day is the same as any other, and lateness and absenteeism should be treated in the same way. Blaming that second bottle of wine won’t go down well.
A work Christmas party should be about celebrating the success that staff have contributed to over the past year. But employers and employees both need to realise the importance of being sensible and not un-doing all that hard work they’ve spent 12 months building.
If you would like to discuss the issues details above, please contact Nick Hobden on 01322 422540 firstname.lastname@example.org. Alternatively please visit our website www.ts-p.co.uk
Brexit and the impact on employment
Q: I employ a number of EU nationals in my business. Now that the UK has voted for Brexit, can I continue to employ them?
A: For now the UK remains a member of the EU and so EU nationals continue to be able to travel freely and work in the UK. What happens when we actually leave the EU will depend upon the precise terms of the divorce.
If the UK chooses the ‘Norway option’, and remains part of the European Economic Area, then there will still be freedom of movement and EU nationals working in the UK will not be affected.
If the UK leaves the EU and does not negotiate to maintain freedom of movement rights, then EU nationals working in the UK may be required to apply for visas under the UK’s immigration rules. The precise terms will depend upon the arrangements agreed between the UK and EU.
This is an unsettling time for EU nationals working in the UK. You can provide them with reassurance in the short term, but the position in the long term will not become clear for some time.
Q: I thought that a Brexit would mean that workers’ rights would be reduced. Is this going to be the case?
A: Again, while the UK remains in the EU, European employment laws will continue to apply. In theory, once the UK leaves, the UK government will have free reign to amend or repeal EU employment laws. Due to the large volume of employment law that comes from the EU though, I expect that the government, whatever its make up at the time, would take a piecemeal approach to reviewing which laws are suitable for changing, rather than having a ‘big bang’ of deregulation upon departure from the EU.
Many EU employment laws, such as pregnant workers protection and protection from unlawful discrimination, are generally seen by employers and employees as a good thing and there does not seem to be any real desire to remove such protection.
However, based on previous pressure from employers to reduce regulation, the rights that are most likely to face calls for removal include the Agency Workers Regulations, which guarantee temporary agency workers equal treatment with permanent employees, and parts of the Working Time Regulations, including how holiday pay is calculated, its accrual during sick leave and the limit of a 48 hour working week.
Those representing employees’ interests are unlikely to accept such changes without a fight, and so employment law reform could be a hot topic at the next general election, whenever that may be.
If you would like to discuss the issues detailed above, please contact Senior Associate, Ben Stepney, on 01892 701359 or at email@example.com .
Times of Tunbridge Wells Q&A - 2015
Each month Thomson Snell & Passmore will be answering frequently asked questions from across the practice. Taking the lead this month our Employment team who have answered two common issues facing both businesses and individuals.
If you have a legal question you would like featured in this monthly Q&A please submit it to firstname.lastname@example.org.
Q: I recently refused an employee’s request to take holiday. On the first day that they requested to take off as holiday, they called in sick. How can I deal with this?
A: Take care not to immediately make assumptions, if you have doubts about whether the employee is genuinely ill. Your starting position should be to give them the benefit of the doubt that their illness is genuine.
We would however suggest that you make some initial enquiries - for example check social media platforms like Twitter or Facebook feeds and speak to colleagues at work as this may flush out the true position.
If you acquire evidence that he is on holiday then on his return to work, invite him to an investigatory meeting. If the evidence suggests that the employee has been lying, then you may be entitled to discipline and dismiss - dishonesty is likely to amount to gross misconduct as would be obtaining financial advantage (payment of salary) by deception. Take care to follow your company’s disciplinary procedure and the ACAS Code of Practice.
If the employee is able to produce a fit for work note covering his absence then you will have to accept that they were sick.
Q: I am pregnant and I recently read that as my baby will be born after 5 April 2015 my husband and I can share my maternity leave and maternity pay to care for our child. If we want to do this, what do we need to do?
A: In order for you both to be eligible to take Shared Parental Leave (SPL) you will have to have been employed continuously for at least 26 weeks by the end of the 15th week before your due date and will need to be employed by the same employer while you take SPL. Your husband will need to be able to show that during the 66 weeks before your baby is due he has been working for at least 26 weeks and earned at least £30 a week on average in 13 of the 66 weeks.
You will be required to take your 2 weeks’ compulsory maternity leave after the birth of your child and your husband will still be entitled to take his 2 weeks’ paternity leave but after your 2 weeks’ compulsory maternity leave, you and your husband could opt into SPL and share the balance of your statutory maternity leave and maternity pay.
To opt-in, you and your husband will need to submit a notice of entitlement and declaration of intention to take SPL with your respective employers at least 8 weeks before the start of a period of SPL.