HR Highlights

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HR Highlights

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The HR landscape is forever changing and it can be difficult to keep up with everything, but luckily as the image suggests I love HR so I enjoy reading about all the changes!  However, I understand that not everyone does so I’ve put together a summary of the core HR highlights from this year ……enjoy!

    1. Fit for Work Service launched for for employers

Fit for Work is a Government-funded initiative that launched this year and is designed to support people in work with health conditions and help with sickness absence.

There are two elements to Fit for Work:

  • Free, expert and impartial work-related health advice via the website and telephone line.
  • Referral to an occupational health professional for employees who have been off sick or who are likely to be off sick for four weeks or more

The occupational health professional will identify obstacles preventing the employee from returning to work and produce a Return to Work Plan tailored to the employee’s needs. Referrals can be made by GPs, and employers if after four weeks of absence, they have not yet been referred.

Employees will need to consent to be referred to Fit for Work, and for the Return to Work Plan to be shared with their GP and employer.

For more information about the Fit for Work Service and how you can refer employees visit the Fit for Work website.

2. Calculation of Holiday Pay

Over the last year or so there have been 2 core cases which have impacted the calculation of holiday pay for employers.

In the first significant case, from November 2014, Bear Scotland v Fulton, the Employment Appeal Tribunal (EAT) decided that regular non-guaranteed overtime should be included in holiday pay.  Then in March 2015 in the British Gas v Lock case, the Employment Tribunal (ET) decided that employees with normal working hours who received commission should also have that commission included in the calculation of their holiday pay.

It is important to note that these decisions only apply to the first 4 weeks’ of an employee’s holiday pay (i.e. the minimum holiday required under European law). They do not apply to any additional holiday, including:

  • the remaining 1.6 weeks’ minimum holiday required under UK law
  • any additional contractual holiday that employers choose to provide

To try and reduce the impact of these changes on employers, the government has introduced legislation to limit any claims submitted from 1 July 2015 onwards from claiming a maximum of 2 years’ back pay for any underpaid holiday pay.

However, the story doesn’t end there! In May 2015 British Gas confirmed that it would be appealing the decision.  The appeal is likely to be heard at the end of this year and the outcome could reverse the ET’s decision in regard to including commission in holiday pay, and it could also challenge the position regarding holiday pay and overtime.  So watch this space!

    3. Shared Parental Leave

The new shared parental leave scheme is now in place for parents whose babies were due on or after 5 April 2015, or who had children placed for adoption on or after that date. This leave is designed to give parents more flexibility in how to share the care of their child in the first year following birth or adoption. Parents will be able to share a pot of leave, and can decide to be off work at the same time and/or take it in turns to have periods of leave to look after the child.

Read more about Shared Parental Leave, including information on entitlement and eligibility in my ‘Shared Parental Leave’ blog .  Acas have also published excellent guidance which outlines best practice for employers and employees.

4. Zero hours Exclusivity Clauses

Over the last few years there has been lots in the media about zero-hours contracts and how they may be used, which has led to many people calling for the use of them to be removed.  However, if used correctly, zero–hours contracts can be beneficial for both employees and employers.

In response to this, on 26th May 2015 the Government launched a ban on the use of exclusivity clauses in zero-hours contracts meaning that employees can no longer be tied in to only being allowed to work for that employer if they are on a zero-hours contract.

5. Parental Leave

Parental leave is for employees to take time off work to look after a child’s welfare.  This leave is normally unpaid and eligible employees can take up to 18 weeks’ ordinary parental leave per child.

Prior to 5th April 2015, the leave had to be taken before the child’s fifth birthday, or 18th birthday if the child was disabled, however from 5th April the right to take parental leave was extended to parents of any child under the age of 18.

    6. National Minimum Wage (NMW) Penalty

The Government now names and shames companies that have failed to pay the NMW, and in the past few weeks Monsoon (the clothing retail chain) was one of those named.  However, from 26th May 2015 not only can you be named and shamed for underpaying the NMW which will certainly negatively impact your brand identity, but you may also be liable to a maximum £20,000 penalty, on a per worker basis.

Case Law Focus: Harvey v Vista Hotels Limited – Unfair dismissal

An employment tribunal has ruled that Vista Hotels did not follow procedure when dismissing a chef who bit two police officers and spat blood at them!  James Harvey, who was head chef at the four-star Fermain Valley Hotel in Guernsey, was awarded £11,000 after the tribunal ruled his dismissal for “gross misconduct” was unfair.

Mr Harvey, 37, was dismissed in the aftermath of a violent incident in staff accommodation, which saw police summoned to attend an altercation between Mr Harvey and his girlfriend.  He assaulted one of the police officers and a special constable with his teeth, breaking one officer’s finger by biting it and then chewing the other officer’s leg. A court in Guernsey heard that he spat blood at the two policemen and had to be restrained with his own t-shirt.  The drunken attack saw Mr Harvey jailed for 18 months for grievous bodily harm. He was notified of his dismissal six months after his arrest.

However, the employer is said to have failed to follow correct procedure in dismissing the employee.  The tribunal said that the “complete absence of a disciplinary process with no right of appeal did not fall within the band of reasonable responses open to an employer in justifying the fairness of a summary dismissal on the grounds of gross misconduct for a first disciplinary offence”.  The company was criticised for not carrying out its own investigation into the incident and not interviewing Mr. H in prison to get his account of events.

This case is a timely reminder that even in the most extreme cases of gross misconduct, it remains very important to ensure that a fair procedure is followed, otherwise any resulting dismissal will almost unavoidably be considered unfair by an Employment Tribunal. If an Employee is charged with, or convicted of a criminal offence this is not normally in itself sufficient reason for dismissal.

Before dismissing for misconduct, you should:

  • Investigate the issues.
  • Inform the Employee of the issues in writing.
  • Conduct a disciplinary hearing or meeting with the employee.
  • Inform the employee of the decision in writing.
  • Give the employee a right of appeal.

What’s to come……

The Living Wage – from April 2016 the new ‘Living wage’ of £7.20 will be implemented for employees of 25 years of age and over and this is set to increase to £9 per hour by 2020. The Government is also looking to Increase enforcement measures, including criminal sanctions.

Statutory Payments

The following statutory payments were updated in October so check out the Governments ‘rates and thresholds for employers’ page to make sure you’re using the right ones:

  • Statutory sick pay (SSP)
  • Statutory Maternity / Paternity / Adoption / Shared Parental Pay (SMP, SPP, SAP, Shpp)
  • National Minimum Wage (NMW)

If you have any questions about anything discussed in this blog or you have any other HR questions just give me a shout on people@aible.co.uk or call me on 01656 630 010.

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