Time off for dependants

There are 2 types of leave associated with dependants/children (once the maternity and paternity leave has been used up):-

Dependant leave.

The law says that an employee can take a ‘reasonable’ amount of un-paid time off in the following circumstances:-

  • To provide assistance when a dependant falls ill, gives birth, is injured or assaulted
  • To make arrangements for the provision of care for a dependant who is ill or injured
  • Following the death of a dependant
  • Following unexpected disruption to existing care arrangements
  • As a result of an incident occurring whilst a child is at school

A dependant is someone, of any age, who is reliant on the employee for their care, so includes children, elderly relatives, partners etc.

As usual, there is no definition of what is deemed ‘reasonable’, and each case should be considered on its merits, but there is no legal right to take time off to look after a dependant for the duration of an illness or to stand in for their usual carer. Neither does it provide for ‘compassionate’ leave following a bereavement, but does allow for time off to arrange the funeral and deal with any legal obligations. This type of leave is intended for short term absences in order to take what the law calls ‘necessary actions’ following an emergency situation which could not have been foreseen, such as arranging for someone else to take care of the dependant, to collect a child from school and establish what is wrong, maybe take them to the GP or hospital and arrange for ongoing care if necessary. The employee should make contact with you as soon as possible after the event, should tell you how long they anticipate being off work and keep you informed. It is not acceptable for such an absence to go on indefinitely unless you are happy to agree to that, and the law certainly would not find an extended absence ‘reasonable’. If you want to pay the employee that is fine, but there is no obligation to do so unless there is a contractual right. This leave should be recorded as Dependant Leave. Some people record it as sickness absence which then gives an inaccurate picture of absenteeism and the reason for it

If an employee needs time off for personal reasons which are not covered by the list of circumstances above they will need to seek your agreement to either allow a period of unpaid leave or take holiday. If they take time off without your agreement, or extend a period of authorised leave without permission and/or you are having problems getting hold of them to find out how things are and when you can expect them back at work then give us a call and we will help you reach a practical resolution.

Parental Leave

This is unpaid, pre-planned leave allowed for parents to take care of their child’s welfare. At present, the law allows employees with at least 1 year of service, who have responsibility for a child’s welfare, to take up to 18 weeks leave, in blocks of at least 1 week (unless the child is disabled in which case it can be taken in odd days) but no more than 4 weeks in any year during the first 5 years of the child’s life (or up to the 5th anniversary of the placement if the child is adopted and still under 18) or up to their 18th birthday if they are disabled. From April 2015 the 18 weeks will be able to be taken up to their 18th birthday for all children. At least 3 weeks’ notice must be given by an employee that they want to take parental leave. You can also ask for evidence of the child’s age and disability if required. You can defer the leave for a maximum of 6 months if your business would suffer a detriment by allowing it to be taken when it has been asked for.

This leave should not be confused with the new legal right to Shared Parental Leave which can be taken during the year following the child’s birth/placement, allowing both parents to share what used to be called maternity leave and pay. We have covered this in a previous newsletter but if you need more details please give us a call.

Reference checking

One of the services we offer here at KHES is reference checking. Reference checking can be a time consuming and difficult process for an employer. The level of information you require will vary depending on the role you are recruiting for, but some of the areas you may want to know about are given below. The most important areas are to confirm are that the candidate was employed when they said they were and that the sickness absence does not indicate problems ahead.

  • Job title
  • Employment history – e.g. roles undertaken
  • Length of employment
  • Qualifications
  • Experience
  • Salary
  • Capability in current role
  • Any training/qualifications received
  • Sickness absence record
  • Disciplinary record
  • Reasons for leaving
  •  Would you re-employ

Who should I be contacting for a reference?

  • Current employer
  • Previous employers (last 5 years normally)
  • College/university/school
  • Friend/colleague (character reference only)

At what point should references be requested?

Employers must remember that seeking references before you make a formal job offer, can cause problems if their current employer is unaware of their wish to leave. Therefore it is essential to ensure you obtain the candidate’s permission before contacting referees.

What can I expect?

Except in the financial service industries companies are under no obligation to provide a reference and many now adopt a policy of providing very limited information. This is often limited to how long the person was employed by the organisation and role undertaken.   While a glowing reference can seem very impressive it is not always an accurate indication of how the candidate will fit into your organisation and may actually reflect how much they want the person to leave!

Holiday Pay and Overtime

The Employment Appeal Tribunal (EAT) has reached a decision regarding what pay should be included in Holiday pay, and stated that contractual overtime (i.e. compulsory or non-voluntary overtime) should be included in a normal weeks pay when calculating how much you should pay someone on holiday. However this is with reference to the holidays that are enshrined in the European Directive on holidays not the additional 1.6 weeks that were added to the allowance in 2008.

What is not clear is what period you will have to average the pay plus overtime out over to get a weeks’ pay.

I can feel your eyes glazing over as I write this but put simply the problem is this. Everyone in the UK is entitled to 5.6 weeks holiday a year (which is 4 weeks plus the bank holidays). In European legislation you are entitled to 4 weeks holiday.

A number of cases in European courts and in UK tribunals have held that for the 4 weeks holiday enshrined in European law, workers should receive a normal weeks pay. What the EAT has done is apply the definition of a normal weeks pay to include contractual overtime (commission payments have already been included in a previous case).

Hence for the 4 weeks holiday a year that is enshrined in European law, people who work contractual overtime will have to have that taken into account when being paid holiday pay. The remaining 1.6 weeks holiday are just paid on basic pay (at the moment….).

What is also not clear is how the courts will define genuinely voluntary overtime or if they will decide to just include all overtime even if there is no obligation to work it.

The little ray of good news in all of this is that the courts have restricted the backdated claims to the last three months.

The problem is that the number of grey areas is still high, so expect more litigation. Also in a move which strikes fear in the heart of anyone who craves clarity, the government has decided to set up a task force to decide what to do!

If you currently pay staff overtime give us a call and we will be happy to advise you on the best course of action for dealing with this decision.

On a purely personal note it is not surprising that the unions and workers organisations have sought to get a ruling like this, even if it does cause problems for decent employers who have sought to comply with the working time regulations. The reason for that is that a number of larger employers followed legal advice that told them they could reduce their holiday pay bill by putting workers on short hours and make up the time with overtime. Yet another “cunning plan” that turned out to be not so cunning in the long run!

“I know lets write a policy about that and put it in the staff handbook then when it happens again we will know what to do”

As part of our service we review our client’s employment documents. Most of the time they don’t have much and we have to create statements of main terms and conditions so that they comply with the Employment Rights Act 1996. However occasionally we are asked to look at a handbook that someone has written for them.

In my view the main problem with these documents is that the person writing them is not clear exactly what they are meant to achieve. They seem to include the following:

i)                    Some vague high minded purpose as to the values of the company (often from a template so any resemblance between the statement and the company is purely accidental!).

ii)                   A series of longwinded policies that reiterate statutory rules (such as a policy on flexible working I saw that was out of date when I read it because the law had changed).

iii)                 A set of guidelines for managers (for example a document setting out how to handle a disciplinary hearing which included an instruction to managers to seek legal advice before talking any disciplinary action.  This had become a contractual obligation to the employee by virtue of its inclusion in the handbook. I think it was written by a solicitor).

iv)                 Some helpful advice to employees about how to go about things such as booking holidays and requesting time off for ante natal appointments.

v)                  Lengthy and very worthy policies on such issues as bullying and equality that go into incredible detail about the principles involved but neglect to mention that discrimination is bad and bullying is not allowed. In addition they list a highly prescriptive set of actions that management will take and thus remove the ability of managers to take the most appropriate action in the circumstances.

The problem with all these policies is that they detract from the useful stuff that is in the there.

These handbooks often run into 40 or 50 pages (although in one instance I saw one that was 150 pages long for an organisation with 25 staff), and are almost universally ignored by the workforce until something goes wrong. At which point they become an excellent tool to stop management doing anything because the rules are so complicated.

So if you want to have a handbook just follow some simple rules:

i)                    Only include stuff that the employee needs to know.

Such as guidance on how they should behave towards their employer, how they should behave towards their fellow employees, and how they should behave towards your customers or clients and what will happen if they ignore that guidance.

ii)                   Do not try to reiterate statutory rules.

That way you don’t have to update it every time some politician has a “bright” idea

iii)                 Don’t automatically introduce new policies on how to deal with situations as they arise.

It’s often better to train your managers to deal with things rather than insist that they follow a set of guidelines that have been written by someone who has never managed staff in their life.

iv)                 Keep it short!

There are a few other consequences of having a lengthy handbook. The longer the document the more likely it is to be internally contradictory and, if it is not kept up to date, it becomes irrelevant. If you have to present it to an employment tribunal you have to explain why some rules are no longer enforced and others are absolutely vital to the organisation (always a fascinating debate with a judge!).

However by far the most dangerous effect of one of these handbooks is that they replace management initiative with a blind reliance on a set of rules without thinking whether they are appropriate in the circumstances.

Hard Decisions and performance

Managing staff, especially if you are also running a business is never easy, but sometimes the decisions you have to take can result in putting someone out of work. An old management mentor of mine once said “the moment it gets easy to dismiss employees is the moment you should stop doing it”. Most people don’t enjoy conflict so they let things slide when it comes to employees especially if they work closely with the employee on a daily basis, and if they have known the employee for years it gets even harder.

The problem is over time the manager’s frustration grows with the poor performance or behaviour of the employee. The issue that finally causes them to act is actually quite trivial when looked at from the outside, worse still it seems trivial to the employee who has never had any inkling of there being a problem in the past.

I’m not advocating that every little thing is picked up by the manager and turned into an “issue”, it’s just that if work is not being performed how you want it to be, you should tell the person responsible and tell them how you want it done. Yes they may be a bit defensive at first but in most cases they will do what you want them to. If they don’t then it is clear that a more formal approach is needed. However in my experience most issues are dealt with by the initial chat.

A client who put up with someone who always made a meal of the morning tea and toast run to the local café, finally lost their patience when they were late for work after lunch and called me wanting to sack them immediately. I asked them that the first thing they needed to find out was why the person was late, but I also took them through the disciplinary procedure and what they needed to do if they wanted to give out a formal warning. They were all fired up to give the employee a good “going over”, but immediately felt deflated when the employee explained that the reason they were late was that they had been involved in an accident and the police had asked them to stay behind to give their details! (Yes I did advise them to check the story was true!)

After this any attempt to raise the issue of their work rate would seem churlish to say the least.

I used to start all new staff off with a list of the things I wanted them, to do and what I liked to see in my employees, then I told them what irritated me (mainly poor timekeeping and a refusal to accept responsibility for their actions). I also told them that now they knew what got up my nose, any transgression in these areas would be quickly dealt with. I would then make sure that either I or one of my assistants spoke with them every few months to tell them what we thought of them (and it was mostly good stuff). We rarely had performance issues after the first six months of employment as those who couldn’t do the job usually moved on.

Returning from Maternity leave

This is a subject that regularly has HR experts taking a sharp intake of breath and running for cover. However in a couple of cases we have dealt with recently, a bit of honesty has reaped rewards. In both cases the jobs previously undertaken by the staff concerned had changed radically over the period of the maternity leave, and in both cases the company had come to me, concerned that the returner would not be able to do the job and with a cunning plan to “get round” the problem. We suggested being up front with the women concerned and ask them to come in for a Keeping in touch (KIT) day so they could  see how things had developed over the nine months they had been away. In both cases the concerns were resolved amicably: One resulted in the woman resigning, one resulted in the women asking to take a different job which both parties were happy with.

Discussing awkward issues with staff only works if both sides feel the other is being honest, trying to fabricate a redundancy where none exists or suddenly raising an issue that has never been a problem in the past, only serves to make the employee feel they are being conned, and nobody is receptive when they feel like that. If you like its similar to how an employer feels if a member of staff tells them how much they contribute to the business when they are regularly late and refuse to do additional work to help catch up or they consistently fail to achieve deadlines.

Of course there are legal niceties to observe, but as my mum used to say honesty is always a better policy than the alternative. You won’t always get what you want but at least (if it is handled properly) you won’t be in a worse position.

If you have a “cunning plan” for your employees you want to discuss with someone, give me a call, there’s a prize for the first person who convinces me it’s a good idea!

Changes to Tribunal Rules – Early conciliation

New legislation comes into force on 6th April. The official title of it is ‘The Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014’-quite a mouthful but in brief the aim is to resolve as many employment disputes as possible without the need for an Employment Tribunal.

Anyone considering making a claim against their employer will be required by law to contact ACAS before they can proceed to a Tribunal. It will be a quicker, cheaper and less stressful way of resolving a workplace dispute.

As you probably already know, an employee has 3 months after the event they are complaining about to lodge a claim. When they contact ACAS , the clock effectively stops ticking for up to a month, with provision for a further 2 weeks if ACAS think the claim will be settled soon,  to allow time for the 2 parties to reach agreement.

If ACAS don’t think a settlement is possible they will issue an Early Conciliation certificate. This act starts the clock running again and confirms that the potential claimant has been through the required process. To lodge a claim at Tribunal claimants will need the reference number from their certificate.

The Early Conciliation service is free to both parties and either the claimant and/or respondent can decline ACAS’s services at any point. The ACAS conciliators are impartial and have up to date knowledge of the law to help to clarify the issues as soon as possible.

This legislation changes the rules relating to Employment Tribunals to facilitate the introduction of Early Conciliation.

It is hoped that Early Conciliation will save time and legal costs estimated at £64.6m a year and deliver a net benefit of £37m. There will be a further saving of £2.6m due to the impact of having fewer Employment Tribunal claims.

Please call if you have any questions .

Don’t end up paying more when staff resign

A client of mine was just opening up her salon for the day when one of her employees came up to her and said she had been offered another job. My client was distracted by a customer who had come in early for a treatment, so when the employee offered to work her notice she just said don’t worry just finish off today if you want.

Two weeks later my client received a call from ACAS ( the government body that deals with employment disputes) saying that the ex-employee had been in touch asking them to mediate in a dispute, as she was about to make a claim for two weeks money from my client for non-payment of holidays and statutory notice.

The employee had accrued three weeks holiday but had only taken 2 weeks off and she had offered to work her notice. The problem is the employee was correct and my client had to pay up. Had my client said “Don’t worry you’ve got some holiday left just take that instead of working your notice” she may have saved herself a week’s money if the employee had agreed to take the holiday, even better she could have insisted that her member of staff take holiday if she had the right clauses in her employment contracts.

So two lesson here

1)      Make sure you have a clause in your contract that states that an employee may be required to use up any untaken holiday during their notice period.

2)      Never say “Don’t bother to come in” to an employee unless you like throwing money away!

The Value of References

Over the years I have regularly witnessed HR departments and managers moaning about the “pointless” process of getting references for new staff, they regularly complain that its an administrative burden and they never get a useful response.

This last month though I’ve had a couple of experiences that have made me think that they may not be all that bad. In one case the references were for a new homecare assistant, both referees were quite neutral about this former employee but both said they would not re-employ him. My client decided to employ him anyway, within two weeks they are dismissing him because he spends all his time trying to appear helpful and as though nothing is too much trouble and then going behind my clients back to wind up his colleagues. So although he didn’t do anything wrong with the people he cared for he could start a fight in an empty room with his colleagues. Its a costly mistake they won’t repeat.

The other reference concerned someone who applied for a job front-of-house in a restaurant. On the surface it was a glowing testimony to the woman’s kindness, character and integrity, but contained a “slight” concern about cash handling!!

I know in some cases the references can be wrong but most business owners I know don’t have the time to get to the bottom of these things and also don’t want to risk the success of my business, by employing someone who could cause me problems.

When I seek references for my clients we get about 60% return on the requests and it is only rarely that they contain anything that would stop us employing our preferred candidate. However when they do contain a negative comment its best not to ignore them..

Good news?

It’s common in blogs like these to concentrate on the problems employees cause you but this week I wanted to talk about two good experiences my salon clients have had in employing staff. On both occasions the salon wanted to hire someone for about 16 hours a week because both owners had found themselves spending all their time rushing about giving their clients an excellent service, but only found time to do the marketing and administration late at night. Ideally they wanted to hire someone full time but couldn’t afford the wages that would entail.

After a fairly disappointing recruitment campaign we approached a local college to see if they had any recently qualified students we could take on. It turned out that not only did they have the people we needed but if we took them on on an apprenticeship we could also receive a grant to help with the wage costs. All we had to agree to was that they were paid at least £2.60 an hour, and that they attended college 6 hours a week.

One student has now started and the other vacancy is being filled at the moment. Of course there is no guarantee that the new staff will turn out alright but then that’s true however you recruit them. My experience of helping my clients take on these apprentices has been so good I’m interviewing a couple of young people to be an apprentice for me this week. So we have three young people being employed. It may not be much but it makes for a good positive story to start the week.