When is Garden Leave used?
Garden leave happens when an employer continues to pay an employee who is leaving a company but forces them to stay away from work during their notice period. During this time the employee is usually forbidden to contact fellow employees, clients or suppliers and is denied access to company information.
The reason for such leave is to prevent the employee from working for a competitor for as long as possible.
Employers wishing to use such a process should ensure that there is a specific clause in the contract allowing duties to be varied, or withdrawn altogether, during the notice period. If the employee breaches a garden leave instruction the employer can take out an injunction against them and the tighter the contractual clause the more likely the courts are to enforce the position. Therefore for key employees, such as sales positions, it is important to consider, in advance, what might create a circumstance when you would want the employee to have limited access to the market.
Employers will need to weigh up the risk against the damage that may be done if the employee continues to work during their notice period, as opposed to the potential litigation if garden leave is breached.
Are you GDPR-ready?
The General Data Protection Regulation (GDPR) is due to come into force on 25 May 2018, giving businesses less than a year to get to grips with the planned changes.
The ‘right to be forgotten’ will be entrenched into national legislation once the GDPR comes in. When most people think of this, they think of Google removing links from search engine results, but the right to be forgotten could also affect information held on file about employees. So if someone receives a disciplinary warning for something, once the warning is spent, those records should not be retained. However, this is only limited to circumstances when an employee requests to use that right. It is not a wholesale rule. So organisations need to have a process in place to deal with requests.
The rules around subject access requests (SARs) are changing too. At the moment, companies have 40 days to respond, but this goes down to a month under the GDPR. The fees organisations can charge for SARs, currently a maximum of £10, will also disappear under the new regulation so this means that there may be a rise in the number of requests received.
GDPR stems from the EU but ministers have already confirmed that the law will be enacted in the UK regardless of Brexit so businesses need to be GDPR-savvy.
Tribunal awarded reinstatement two years after dismissal
An employer has been ordered by a tribunal to reinstate a legal secretary two-and-a-half years after she was dismissed.
The employee, a legal secretary, started working for the Royal Borough of Kensington and Chelsea as a legal secretary in August 2003. From 2010 onwards, she given written warnings for talking about employees behind their backs.
In April 2013, the Council services were merged with another Borough, reducing the number of legal secretaries required. Ramos Alvarez applied for one of the positions but was not successful and was selected for redundancy. The tribunal found that the selection criteria had been wrongly applied and that she should have been retained.
The tribunal agreed that she had been unfairly and agreed that she should be awarded £26,508.
However, she argued to be reinstated in her job and the tribunal ruled that, not only should the council reinstate the legal her (and back date her pay) but also restore all her pension rights and seniority.
This case demonstrates that employees are entitled to request to be reinstated rather than seek compensation – and this may become more likely if the employee has been dismissed from a job that is regarded as well paid, with good benefits. In this case the employee wished to return to what she regarded as a rewarding and fulfilling role rather than receive an award and have to find a new job.
Employers failing to pay correct wages are fined
Deducting pay to cover uniforms, paying the wrong wage to apprentices and failing to account for overtime were among the most common excuses given by employers who have been identified as underpaying staff.
The Department for Business, Energy and Industrial Strategy (BEIS) discovered that 233 companies failed to pay more than 13,000 staff the national minimum wage (NMW), amounting to a total shortfall of nearly £2m.
Argos were found to owe nearly £1.5m to their staff and retailers, hospitality businesses and hairdressers were among those companies most likely to have incorrectly paid staff.
The businesses have been forced to refund the unpaid wages to the staff concerned but have also been fined t a total of £1.9m.
The government revamped its naming and shaming scheme for employers that fail to pay the required minimum wage in October 2013. Since then, it has identified £6m of back pay due to 40,000 people and fined 1,200 businesses £4m. HMRC is currently investigating around 2,000 cases of underpaid wages.
It has also been revealed that one in five apprentices did not receive their mandatory minimum wage in 2016. At present, apprentices are entitled to £3.50 per hour if they are under 19 or in the first year of their apprenticeship. After this, they should be paid the rate of NMW for their age group.
The NLW, which applies to those aged 25 and over, is currently £7.50.
Removal of Tribunal Fees will bring a Rise in Certain Claims
Following the removal of employment tribunal fees there is a suggestion that tribunal claims will soar. We examine those cases most likely to increase:
Equal pay disputes
Claims surrounding equal pay are likely to increase following the attention the BBC pay report has attracted. Voluntary information around structures and pay will become more important as a means of providing an objective, non-discriminatory explanation for a perceived pay gap. Disclosing any steps taken to address this could also reduce the risk of being taken to tribunal.
One in four young mothers have experienced maternity discrimination. Such claims can prove expensive, with one mother awarded £25,000 in compensation earlier this year after a tribunal decided she had been unfairly dismissed. Now the financial barrier of fees has been removed, it is likely that we will see more of these claims.
Discriminatory dress codes
A petition signed by more than 150,000 people protesting requirements for women to wear high heels in the workplace brought issues around workplace dress to national attention earlier this year. People can now bring those claims without personal cost and therefore disgruntled employees have nothing to lose by bringing a claim.
Claims from younger workers
An increase in claims is expected from younger workers, as the Department for Business, Innovation and Skills’ Survey has found that 49% of claimants were influenced by the requirement to pay a fee, with younger workers aged between 20 and 24 more heavily affected than those aged over 65.
Have you used the Fit For Work Scheme?
A new survey has found that around two-thirds (65 per cent) of more than 400 GPs questioned had not referred a single person under the Fit for Work scheme in the last year.
And of those who had used the scheme at some point, 40% said that no one they had referred had successfully returned to work.
Meanwhile, three out of five of those questioned said they were not sure how effective the programme was at reducing long-term sickness absence and 15% described it as very ineffective.
Fit for Work was initially established as a GP-led service but was extended to allow businesses to refer employees in September 2015. It aims to provide free, impartial advice to employers along with an occupational health assessment for staff off sick for four or more weeks, in a bid to reduce the NHS bill for long-term sickness by getting individuals back to work earlier.
It has been suggested that the scheme has been a “wasted investment” and the numbers reflect the lack of publicity around it.
Low paid jobs cause more stress than unemployment
People in low-paid or high-stress jobs may experience more health problems than those who are unemployed, according to a new study. Researchers examined the health and stress levels of more than 1,000 participants aged 35-75 as they moved through different employment statuses.
Their findings revealed that the highest levels of chronic stress were among adults who moved from unemployment into poor-quality work. Unsurprisingly, those who moved from unemployment into a good-quality job had the lowest levels of stress.
Just as good work is good for health, we must also recognise that poor-quality work can be detrimental for health. If the work is not rewarding, it is just as damaging as being unemployed; being in a job where the culture is unhealthy or a heavy workload.
Young people in temporary jobs are 29% more likely to suffer mental health issues than those in full-time work, while workers who believe they have more than a 50% chance of losing their job are twice as likely to experience mental health problems compared with those who feel secure in their role.
Is your business equipped to deal with bullying?
Increasingly business owners are prepared to try to understand the importance of employee wellbeing, staff engagement and work-life balance, it appears that bullying is still an issue across the UK. According to ACAS, bullying costs businesses up to £18bn per year.
There is no legal definition of the term “bullying”. ACAS define it as “offensive, intimidating, malicious or insulting behaviour; an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient.”
Bullying can create serious problems for employers –absence is a common consequence and can represent a cost to businesses. However, poor morale, loss of respect for managers, lost productivity and resignations are also common consequences.
Legal implications include constructive unfair dismissal claims, whistleblowing, personal injury claims, health and safety complaints, harassment and discrimination claims and claims under the Protection from Harassment Act 1997.
Responsible employers can take the following action to curtail workplace bullying:
• Leading by example with the senior team setting the culture.
• Having a formal anti-bullying and anti-harassment policy in place and communicating this across the workplace.
• Training managers to identify the signs of bullying and on their responsibilities to combat it.
• Maintaining fair procedures for dealing promptly and fairly with complaints of bullying from employees.
Do you provide employer references when asked?
There is often concern when an employer is asked to provide a reference. Employers are not under any legal obligation to provide a reference. However, where one is provided, the obligation is to provide a reference that is accurate and fair. If an employee has a poor attendance record, this can be stated. If an employer would choose not to re-employ or had performance concerns, provided there is a reason for this, this can also be stated. Employers must ensure that the information given is accurate and fair.
Second, consistency is important – there should be a policy of what is provided and by whom to avoid issues where a particularly poor reference is provided out of the blue, for one particular employee which is contrary to the normal practice.
Generally, only senior management should be authorised to provide references and they should be aware of the policy.
Remember too that employees have a right, under data protection legislation, to receive a copy of any reference issued by an employer.
What’s the office dress code?
Two-thirds of UK employees enjoy following a dress code, rising to 67% among 18 to 24-year olds and 69% among 55 to 64-year-olds, new research has found.
Of those surveyed 57% said they did so to look more professional to customers, 26% said it made them feel professional and 9% felt it made everyone equal.
By contrast, of those who felt employers should loosen their dress codes, 28% said it made people feel uncomfortable, 24% complained that they didn’t allow people to show off their personality and 18% pointed out that styles were always changing anyway. The study also revealed that nearly a quarter of men and more than a fifth of women had been told off for wearing the wrong attire to work.
But some companies are loosening up on tighter dress code policies. Goldman Sachs was recently praised for relaxing its strict City dress code, which banned clothing items such as short trousers for men. In a memo to staff, the banking titan said it would be embracing a “year-round casual dress code”, though requested that employees consider their smartness when in client-facing meetings.
Dress codes can be useful for letting people know where they stand, and alleviating concerns about getting dressed in the morning. It is important, however that when developing a dress code, employers consider what is appropriate and practical in the office.