February, 2019

Get ready for payslip changes in April

There are two significant changes affecting payslips from 6 April 2019. Individuals who are considered to be “employees” have always had the right to receive an itemised payslip. However, this right is now being extended to “workers”. This means that anyone who works – even on an ad hoc basis, or on a zero hours’ basis from time to time, is entitled to receive an itemised payslip.

Additionally, where a member of staff’s pay varies according to the time worked, the payslip must now contain the total number of hours worked for which variable pay is received. It is not enough to record the amount of pay earned – it must be broken down by hours worked and pay per hour.

  • Posted on February 26th, 2019

Plans to report on ethnicity and disability pay gap may cause reporting difficulties

There are plans to start to reveal their ethnicity and disability pay gap, following on from the gender pay gap legislation which requires organisations with over 250 employees to disclose the difference in pay between male and female employees. The plan is aimed at creating a fairer and more diverse workforce, and removing the barriers facing disabled and black, Asian and minority ethnic (BAME) employees in progressing to the highest positions of an organisation.

Research for the Equality and Human Rights Commission found that people with learning difficulties or disabilities experience pay gaps of up to 60%, while individuals with mental illnesses experience gaps up to 40%.

Research has revealed that the ethnicity pay gap can reach as high as 17% for some minorities in the UK. Just 3% of large companies have voluntarily revealed their disability and ethnicity pay gaps so far.

Gender pay gap reporting was relatively straightforward for employers because they already held this data on file, but this isn’t the case for data relating to ethnicity and disability. If this is implemented, businesses will be required to carry out an audit of data to ascertain what data is on file about employees from ethnic backgrounds and where there are gaps in data, employee data will require to be harvested.

There is another difficulty in that it will have to established how disabilities will be classified – is it for the employee or the employer to determine what and who is disabled?

There is no doubt that if this legislation is introduced, businesses will have to change the way they attract and recruit staff and store personal data!

  • Posted on February 26th, 2019

Businesses still not fully aware of data security issues

New research claims that 43% of senior executives and managers have suffered at least one cyber-attack within the last two years and whilst sensitive data may well have been compromised, only 31% of those polled believe that the cases had been dealt with properly.

The report claims that less than half of senior executives and managers feel that their employees are conscientious about the threat of a cyber-attack, whilst just 51% believe that their businesses have adequate strategies in place to deal with such attacks.

13% of those polled actively believed their workplace protections were poor, whilst 30% described their security as ‘average’.

According to government-funded cyber security site Cyberaware, there are a few key steps to ensuring workplace cyber safety:

1. Ensure that all work-based computers are up-to-date on the latest malware-blocking software and systematicallyupdate passwords on a regular basis.
2. Ensure that all data is legally stored in safe locations. This means ensuring that staff do not leave sensitive data in un-secured files.
3. Provide staff training on security and safe storing of data.
  • Posted on February 26th, 2019

Manage absence effectively and make long-term gain

Employee absence can have a significant impact on businesses – on performance, productivity, workload and morale. Managing sickness absence requires sensitivity and flexibility and because of this, it is often swept under the carpet.  

Keeping accurate absence records can assist an employer in identifying issues and relating the records to a clear absence policy will also help to ensure that employees are aware of expected standards of attendance and encourage managers todeal effectively with absences. Only move into a disciplinary procedure once welfare meetings have been held to establish cause and support mechanisms.  

For persistent or long-term absence, employers must consider whether an employee’s absence is due to an underlying medical condition that could amount to a disability under the Equality Act 2010. If the employee is disabled, the employer has a duty to make ‘reasonable adjustments’ for the employee’s disability which might include a phased return to work, amending duties for a short time, or providing additional workplace support to facilitate a return to work. Making reasonable adjustments is good practice, as well as being key in avoiding disability discrimination claims. Compensation for disability discrimination is uncapped and successful claims can lead to high awards of compensation. 

  • Posted on February 26th, 2019

Costs award awaited for oldest person in the UK who won an age discrimination case

An 88-year-old hospital secretary has become the oldest person in the UK to win an age discrimination case after she was sacked when colleagues complained about her age and “frailty”. 

The employee reported feeling “humiliated” and “degraded” after her employer, an English NHS Trust, dismissed her for allegedly failing to upload details of patients into a new electronic database. 

The employee who started working for the trust in 2005, was a medical secretary to a specialist breast cancer.  An employment tribunal has heard that on returning from holiday on 8 September 2016, the employee was told to meet with the director of operations, where she was informed she was being investigated. She was placed on leave and told collect her things and leave the premises. Following this she received a letter outlining concern regarding her capability due to three errors having occurred in data base input in the last two years. However the employee maintained that she had not ever been spoken to about the first two incidents which were alleged.

When the investigation was carried out, there was no initial interview with the employee and a report was submitted in her absence. The manager also collected and used feedback on the employee from her colleagues, including about her age and mobility, which the tribunal judge said were “inappropriate” and “discriminatory”. 

The tribunal ruled that the employee had been unfairly dismissed, and her discrimination claims on the grounds of age, disability discrimination and breach of contract succeeded.

There are always risks when an employer makes assumptions based on an employee’s age. Rather than judge on age, employers should have systems in place to allow them to evaluate potential and performance, against a clear job description and using objective measurement.

Furthermore, when investigating capability, it is important to conduct proper investigation and establish the areas of incompetence rather than focus on age and the perceived “frailty” which might come with that.  

  • Posted on February 20th, 2019

Guidance published on Age Discrimination

ACAS has published new Guidance on Age Discrimination to help employers unfair treatment at work and have provided some examples of age-related discrimination that may occur without employers realising:

Ageist remarks are likely to be discriminatory even if they are not intended to be insulting. “You look great for your age” is discriminatory if it has the effect of upsetting the recipient.
Job applicants are often discriminated against because of the age people “think” they are.
Employers may make age-based assumptions about what job applicants and employees are capable of and how they will behave. This type of stereotyping is one of the most likely causes of age discrimination.
Employers may pressurise an employee into retiring if they think that the job is “beyond them”.
Employers may assume there is more value in training younger staff rather than employees.
Employers may unwittingly fail to treat employees consistently and fairly when assessing their performance and setting future goals, based on their age or perceived age.
  • Posted on February 18th, 2019

The Modern Slavery Act – are you meeting your obligations?

It is estimated that there are around 130,000 victims of humantrafficking and slavery in the UK. In 2016/17, modern slavery offences were estimated to cost the UK £4.3 billion.

Section 54 of the Modern Slavery Act requires any commercial organisation in the UK with a global turnover of £36m or more to publish a slavery and human trafficking statement each financial year. Just last year, the Home Office announced plans to write to the CEOs of 17,000 companies who had failed to publish such a statement as only 60% employers had complied with the Act.

Typically, adhering to this will involve following fairly straightforward measures:

A statement must be produced for each financial year.
There is no prescribed form; a business has complied if it simply states ‘we have taken no steps’.
The statement must be approved by the board and signed by a director.
The statement must appear on the company website, with a clear link on the home page.
  • Posted on February 18th, 2019

Unpaid work trials may be used in recruitment, following Governmental guidance

The Government has issued guidance on when employers may use unpaid work trial periods as part of their recruitment processes.

There has been much negative press around using trial work periods. The situation has now changed. The guidance suggests that unpaid trial shifts can be used as part of a ‘genuine recruitment process’.  This is subject to a few provisos, such as ensuring candidates are monitored and assessed during the shift, the duration of the trial shift is no longer than needed to assess the prospective employee and that the “work” undertaken is the work that would be done,should the candidate be successful.

It is important to take a consistent approach in asking prospective candidates to undertake work trials to avoid any risk of discrimination claims.  The correct use of a trial work shift can be a key tool in the recruitment process, allowing both the candidate and the employer to assess whether they
are a good fit.

  • Posted on February 18th, 2019

Online right to work checking service goes live

The Home Office have officially gone live with their online Right to Work Checking Service. This gives employers access to real-time information about an individual’s right to work. This will help employers avoid a penalty if found to be employing illegal workers as long as:

The online check confirms that the employee is entitled to work in the UK
The employer satisfies itself that any photograph in the online check process is of the employee
They retain a copy of the online check for at least two years after the employment ends.
The online checking service can be used by non-EEA nationals who hold biometric residence permits or biometric residence cards and EEA nationals who have been granted settled status. EEA national who have not been granted settled status will still need to demonstrate their right to work through the appropriate documents.
  • Posted on February 18th, 2019

“Use it or lose it” principle in question following important holiday court judgments

In an important finding the Court of Justice of the European Union (ECJ), in judgments relating to two German cases has held that a worker cannot automatically lose the right to take paid holiday because they did not apply to take it.

Both cases on the right to take paid annual leave under Article 7 of the European Working Time Directive (WTD), which says:

Member states shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks.
The minimum period of paid annual leave may not be replaced by a payment in lieu except upon termination. 

One of the employees did not take holiday in the last few months of his employment and asked for accrued holiday paywhen his employment was terminated. He was then asked by his employer to take his accrued holiday entitlement before his employment came to an end but took only two days and expected to be paid in lieu for 51 days accrued over two holiday years. 

The employers in both cases believed that German labour laws justified them not making any payment in lieu. The two employees complained to the courts

In its judgments, the ECJ set out a number of principles on the right to take paid annual leave under the WTD, including:

While the WTD permits holiday to be lost at the end of a holiday year, it does not permit an automatic loss of rights without first verifying that the worker had an opportunity to take the annual leave available to them. 
The worker is the weaker party. It cannot be left up to a worker to have sole responsibility to ensure they exercise their rights.
The burden is on the employer to be able to demonstrate that it encouraged the worker to take annual leave (although this does not extend to forcing a worker to take holiday). 
An employer is required to ensure that the worker is encouraged to take annual leave. The worker must also be told the consequences of not taking holiday – ie that it will be lost. This encouragement must be done in a way that is ‘specific’ and ‘transparent’. 
If the employer can show that the worker deliberately, in full knowledge of the consequences, refrained from taking annual leave after having had the opportunity to do so, the WTD does not preclude the loss of holiday or a payment in lieu of holiday on termination.

Although the cases focused on a payment in lieu of annual leave upon termination, the decision has significant implications relating to the right to take holiday. The ‘use it or lose it ‘ principle is set out in most employment contracts and tends to be relied on by employers. 

These cases may now place an obligation on employers to proactively encourage workers to take holiday and spell out the consequences of not doing so. Therefore good practice moving forward would be to:

Encourage staff to take holiday, and make sure they have the opportunity to do so; 
Advise staff that if they do not take all their holiday entitlement, it will be lost; and
Keep written records of efforts to do this so there is an audit trail.
  • Posted on February 13th, 2019

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