When is a resignation really a resignation?

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Author: Jackie Bolton

A recent case about resignation is a reminder to employers that they need to act in a logical, sensible and responsible way when employees appear to indicate their intention to leave.

The employer must establish whether this is a genuine resignation, with all of the consequences that this involves, or a heat of the moment comment.

This is crucial because so long as a resignation is clear and unequivocal, it cannot be retracted later without the employer’s consent. Especially if the employer has clearly responded, acknowledging that the employee has chosen to leave.

In other words, the employee’s actions can be treated as a definitive act of leaving, so it is then up to the employer to decide whether they decide to accept, or not, the employee’s retraction.

But plenty of cases show that where it is not quite clear that someone has actually resigned, especially if there is no resignation letter, the employer will not be given the benefit of the doubt if they simply accept this as a resignation.

In Cope v Razzle Dazzle Costumes Ltd exactly this situation arose. The claimant had been with the company for over three years, and was in dispute with the employer over a disciplinary matter, and also in ill health.

As she usually did, when she was about to go away on holiday, she dropped the keys to her company vehicle into the office. As she did so, she was heard to say “I’m done” with a hand gesture that suggested that this was it, she was finished.

Without any further investigation, the Manager she saw told the company she had resigned. The company took this at face value, and despite a subsequent sick note to explain why she was not returning to the office, they refused to take her back. She did not return to work and filed a case for unfair dismissal.

The Employment Tribunal noted that the facts were disputed in the case, but felt that the employer had done nothing to establish the intentions of the employee, nor whether it was a genuine resignation. As a result, they were not entitled to rely on it, and their refusal to allow her to return amounted to unfair dismissal.

Indeed, the Employment Tribunal concluded that the employer had grasped the opportunity during a troublesome situation to rid themselves of her.

A number of cases over the years have underlined the point that the employer has a duty to establish that a resignation is genuine and intended. It is such a big step for an employee, the employer cannot just rely on a heat of the moment comment, but must take steps to establish the truth of the matter.

And it is always sensible for the employer to allow a short cooling off period before checking in again to make sure that the employee really does tend to resign.  The same applies if the employee simply goes absent without leave, AWOL.

Another common problem arises when the employee produces a written resignation with a whole load of complaints.  The temptation, especially if they have short service, is to just accept the resignation and ignore the concerns raised.

This is when you need professional support to decide on how best to respond to the grievances contained within the resignation.  If the case is not handled properly, the employer could later find themselves facing an unexpected claim of constructive unfair dismissal and/or discrimination (which requires no service criteria).

And, with no decent written audit trail as to how the employer addressed the departing employee’s complaints, defending such claims will be harder to defend, as in the case described above.

 

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

The information provided in this article was correct at the time of publishing.

 

Back in 2015, we sent out Newsletter No 97 about the right of employees to be accompanied at any grievance meetings.  We are now in 2023 and certain aspects have now changed, so we have produced this update.

An employee who is invited to attend a grievance meeting has the right, under the Employment Relations Act 1999, section 10, to be accompanied by an accredited “trade union official or a fellow worker.”

When inviting an employee to a grievance meeting, the employer should inform them of their statutory right to be accompanied.  There are a number of things you need remember when dealing with an employee’s right to be accompanied. Much of which can be found in guidance from ACAS:

(1) Not every grievance related meeting attracts the right to be accompanied. When an employee raises a formal grievance, the subsequent meeting you will have with them does mean that they have the right to be accompanied. This meeting is to hear their grievance in full, and to establish whether there is evidence that supports their claim. This could be classed as a type of investigation.  If what they raise at that meeting requires further investigation, then it is important that this happens. So, any other follow up meetings with that employee about their grievance will also incur the statutory right of accompaniment.  However, other investigation meetings, when you are interviewing other witnesses to establish whether the initial grievance claim has merit or not, does not require you to allow those employees to be accompanied, unless your policy says so.

(2) Employee’s requests to be accompanied must be reasonable. Situations where the request may not be reasonable include, where their chosen companion will not be available to attend a meeting within a reasonable time, for example because of illness, holiday, work or other commitments. The issue of the reasonableness of the request is a matter of fact in the particular circumstances. Employers should carefully justify any rejection of a request by reference to the principles of the ACAS Code of Practice on Disciplinary and Grievance Procedures, including the need to deal with matters promptly and without undue delay.

The companion must be chosen by the employee and can be a fellow employee, or a trade union official who has been certified by the union as having experience of, or having received training in, acting as a companion at such meetings. There is no necessity for the trade union official’s union to be recognised in the workplace, nor is there any obligation on employees or union officials to accept a request to act as a companion.

(3) The employer cannot object to the employee’s choice of companion, so long as the companion is willing, and is available. We would recommend that in making their choice, employees should be told to bear in mind the practicalities of the arrangements.

(4) If the companion is not available at the proposed meeting time, and the employee suggests another time that is reasonable, and falls within five working days of the original time, the meeting must be postponed. The new time can be proposed by either the employer or employee.  If the employee again states that their chosen companion is not available, then the employer can recommend they find another companion so as not to postpone matters any further, beyond the initial week’s delay. Trade Union officers are busy people, so if the delay is only for a matter of a couple of further days, it may be advisable to accept a short further delay to appear reasonable.

(5) The companion should be allowed reasonable paid time-off to carry out the role. They are permitted to take a reasonable amount of paid time off during working hours to accompany a colleague, and to prepare and confer with the employee before, and after the meeting. They may present a complaint to a Tribunal if the employer fails to pay them for the time off.

It is important for employers to ensure that an employee advises their employer in advance, of the identity of the person they would like to bring to the meeting as their companion, so that the employer can ensure their availability and support for the employee.

(6) Ensure you understand what the companion can do at the meeting. Employers often mistakenly believe that the companion is there simply to provide moral support, and act as a witness for the employee, but can take no active part in the meeting.

The companion, if they so wish, must be permitted to address the meeting in order to put the employee’s case, they can sum up the case and respond on the employee’s behalf to any view expressed at the meeting. The companion must also be permitted to confer with the employee during the meeting.

A companion can also take notes of the meeting on the employee’s behalf. This may sometimes lead to two versions of the notes, if the version of the employer’s notes is disputed by the employee, based on their understanding of what was discussed at the meeting.

However, the companion has no right to answer questions on behalf of the employee, to address the meeting if the employee does not wish them to do so, or to prevent the employer explaining its case.

(7) If the employee going through the grievance process is disabled, reasonable adjustments may need to happen, such as allowing a companion from outside the normal permitted categories. Permitting companions of this nature can be a sensible policy for employers, as their presence may help put the employee at ease, and assist in getting to the facts of the matter under consideration. If English is not the employee’s first language and they have a known language problem, then having a companion present that can translate for them is strongly advisable but preferably find someone in-house if possible.

(8) There may be adverse legal consequences if an employee is refused the right to be accompanied. The employee can complain to an Employment Tribunal. Where the complaint is well founded, the Tribunal will order the employer to pay up to two weeks’ pay as compensation (subject to the statutory cap on the amount of a week’s pay). The right to be accompanied does not depend on the length of time an employee has worked for/with the employer.

(9) It is not necessary for an employee to make a request to be accompanied in writing, or within a specific timeframe. However, employees should be encouraged to make their requests clear, and provide their employer with the name of their chosen companion, as well as confirming which category of approved companion they fall in to.

(10) Unless contractually entitled, employees have no statutory right to be accompanied by a family member at a grievance meeting, unless the family member happens to be a work colleague or trade union official, in which case, they will be a permissible companion under the statutory right to be accompanied.

However, there is nothing to prevent an employer from allowing an employee to be accompanied by a family member, and it is likely to be appropriate in the case of a young person under 18 years old or a particularly vulnerable employee.

(11) The conduct of any companion may be considered as part of their normal duties, so blatantly disruptive or inappropriate behaviour should attract any appropriate action against the companion, as an employee, in their own right.

 

Finally, many employers are nervous at the prospect of holding a grievance meeting when the chosen companion is an accredited trade union representative.  Don’t be would be our advice.  Full time union officials are very experienced at these types of meetings, and tend to be refreshingly objective and non-emotive, which invariably helps the employer to get to the real heart of the matter.  They will have also encouraged the employee to be clear about what they wish to achieve having raised the grievance.

If you feel that you need professional assistance to ‘balance things up’ then we would be happy to assist.

 

Our consultants would be pleased to advise you on any element of the issues arising from this newsletter.

After the first school strike for some time, we had a number of questions from clients regarding how employers should treat the time off some parents have taken to look after their children.

And, there has been some misreporting in the press, particularly the BBC, who stated that all employees have a right to take time off to care for children and dependants. That is not strictly true.

What they do have, in an emergency, is the right to take time off to organise care for children and dependants. Full details of Government guidance can be found at this link – Time off for family and dependants: Your rights – GOV.UK

What does this mean in practice?

Our recommended response to your employees would be “What arrangements can you make to adapt to the new circumstances?”

As mentioned, there is provision within the law for time off for dependants, that permits taking emergency unpaid time off to make alternative arrangements for the care of dependants/children.  It is not time off to actually care for them.

Many employers ask parents, in such circumstances, to take the time as holiday, unpaid leave, or make up their hours/time later. Depending on their job role and whether home working is feasible, you might agree for them to work at home on strike days.

But where this is not possible, their focus should be on making arrangements to have their children looked after, so they can get back to work.

When are the next strikes due?

  • 14 February: All schools in Wales
  • 28 February: North and North-West England, Yorkshire and Humber
  • 1 March: East Midlands, West Midlands, and the NEU’s eastern region
  • 2 March: South-East and South-West England, and London
  • 15 and 16 March: All schools in England and Wales

As ever, how you treat your employees will depend on your contractual documentation, what it says in your handbook or other policies and procedures, and the culture of your organisation.

In general, when a school closes, many parents will have to make some alternative arrangements. And, this may mean they have to take time away from work. It is up to the employer to decide whether this time is paid or unpaid.

What we would say is that, if you are fair and reasonable to those employees who are also parents, they are more than likely to want to stay with you, knowing that plenty of employers are not as good.  Failing to consider peoples personal circumstances, and being unsympathetic to working parents, is not likely to encourage employees to want to stay in the medium to long term.  This, in turn, creates a higher labour turnover, more recruitment costs and training.  So, think through what the long-term implications might be of being unsupportive on teacher strike days, which are not of your employees’ making.

 

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

All information provided in this newsletter was correct at the time of publishing.

In 2023, there will be an additional Public/Bank Holiday to mark His Majesty’s Coronation.  The Coronation is actually on Saturday, 6 May so the Public/Bank Holiday is the following Monday, 8 May.  This means there will be 3 Public Holidays in May 2023.

For England and Wales, the schedule for 2023 looks like this:

Date                       Public Holiday (Dates in italics are not the official holiday)

2 January                New Year’s Day (substitute day)

7 April                      Good Friday

10 April                   Easter Monday

1 May                      Early May Bank Holiday

8 May                      Bank holiday for the Coronation of King Charles III

29 May                    Spring Bank holiday

28 August                Summer Bank holiday

25 December           Christmas Day

26 December           Boxing Day

All employees are entitled to a set number of days off work each year by way of paid leave. The minimum statutory annual leave entitlement is 5.6 weeks’ paid holiday per year, which is equivalent to 4 weeks plus 8 Public/Bank Holidays. An employer may offer enhanced rights over this legal minimum under the terms and conditions stated within their employment contracts.

However, by law, Public or Bank Holidays do not have to be given as additional paid leave, although an employer can choose to include Public/Bank Holidays as part of an individual’s statutory annual leave entitlement. If so, this essentially means that if your place of work is closed on some or all Public/Bank Holidays, you can require employees to take these days as part of their paid holidays. Equally, you may choose to pay your employees for Public/Bank Holidays on top of their normal leave entitlement, or allow employees to take them as extra holiday days, but without pay.

In the context of any organisation that remains open on a Public/Bank Holiday, it’s again up to the employer to decide whether or not an employee needs to work those days.

In essence, the rules relating to whether employees are asked to work, or not, Public/Bank Holidays, and whether or not any Public/Bank Holidays are included in the overall paid annual leave entitlement, are a matter of what is clearly expressed in the contract of employment. Whether Public/Bank Holidays are in addition to, or inclusive of the employee’s statutory or contractual annual leave entitlement, will depend on the wording within the contract of employment.

Entitlement to the additional Public/Bank Holiday in 2023

It is important to note that employees do not have an automatic right to paid time off for an extra Public/Bank Holiday. Employers are advised to check the wording of their employment contracts, and communicate with employees about whether or not they will be required to work on the additional Public/Bank Holiday in line with the terms of their contract.

We have set out below the most commonly used phrases relating to Public/Bank Holidays that we have seen in employment contracts, and what they mean in terms of the employee’s right to have paid time off work on 8 May 2023.

Contractual wording Entitlement to paid time off for an additional Public/Bank Holiday
1.

“20 days holiday per annum plus Public/ Bank Holidays”

 

 Yes – employees will have a contractual entitlement to take paid time off on the additional holiday as the wording on holiday entitlement in the contract is not limited to the normal/usual Public/Bank Holidays. Therefore, there is a contractual entitlement to paid time off on all Public/Bank Holidays – including Public/Bank holidays which are in addition to those normally observed.
2.

“28 days holiday per annum”

 

 Potentially – where the contract is silent on Public/Bank Holidays, the employee has the ability to request booking from their 28-day holiday allowance any of the Public/Bank Holidays, including the additional Public/Bank holiday, subject to Management approval. However, there is no increase in holiday entitlement as a result of the additional Public/Bank Holiday.
3.

“20 days holiday per annum plus 8 Public/Bank Holidays”

 Potentially – similar to above.  The contract is silent on which Public/Bank Holidays are included within the employee’s holiday entitlement, and, therefore, an employee has the ability to request booking the additional Public/Bank Holiday as paid time off in May 2023. Although this would mean that the employee will not be entitled to one of the later Public/Bank Holidays in the year. We would recommend this is clarified to the employee at the time of booking annual leave.
4.

In addition, you will also receive pay on or in respect of each of the eight Public/ Bank Holidays as listed below:

           
New Year’s Day, Good Friday, Easter Monday May Day, Spring Bank Holiday, Late Summer Holiday, Christmas Day, Boxing Day.

 No – where there is a list of Public/Bank Holidays contained within the contract, the employee will only be entitled to receive paid time off on those named Public/Bank Holidays listed (whether this list is some or all of those usually observed in England and Wales). Employees with such wording in their contract will not have a contractual right to the King’s Coronation Public/Bank Holiday of 8 May 2023, only by the discretion of the Employer.
5.

“20 days holiday per annum plus the usual Public/Bank Holidays observed in England and Wales”

 No – as the additional Public/Bank Holiday is not usually observed in England and Wales, so employees would not be entitled to take paid time off on the additional Public/Bank Holiday.

The wording at point 4 above is what most of our clients will have, although it is important that you check your templates versions.

Even where there is no contractual entitlement to take the additional Public/Bank Holiday as paid time off, many employers, as a gesture of goodwill, will decide to allow their employees to take the additional holiday.  If that is not possible for operational reasons, an employer may choose to provide time off in lieu as an alternative. The goodwill lost through not offering an extra day’s leave in 2023 will often far outweigh any marginal cost savings gained from not giving the day off, or from requiring employees to take the extra day from their existing holiday entitlement.

Previous approach to time off for additional Public/Bank holidays

In 2022 we had the Queen’s Platinum Jubilee in June and then unexpectedly the Queen’s Funeral in September.

Therefore, when considering whether to allow employees paid time off for the additional Public/Bank Holiday in 2023, we would recommend considering what has been done previously. If employees have previously been offered paid time-off, or time-off in lieu to mark an additional Public/Bank Holiday, to adopt a different approach in respect of the 2023 additional Public/Bank Holiday may cause a negative reaction from employees (in particular, those with long enough service to have been working when this happened previously).

Requests for time off work

Even though employees have a right to a minimum number of paid days holiday each year, employees are not normally entitled to pick and choose when they take this time off. Employers need to manage staff rotas to ensure that they have the necessary available cover at all times to ensure business continuity.

To maintain good employee relations, it’s important for employers to handle any requests for time off fairly and consistently. As an employer, you should also be prepared for an influx of annual leave requests covering the two weeks linked with Monday,1 May and Monday, 8 May 2023 Bank holidays.  If your workplace closes on weekends and Public/Bank Holidays, the extra Public/Bank Holiday will probably mean that many of your employees will seek to benefit from 9 consecutive days off work. As it is highly unlikely that you will be able to accommodate every request, a strategy will need to be considered in advance.

The three key considerations will be:

  • Decide on a fair approach whilst balancing operation needs;
  • Early communication about whether or not certain groups of the workforce may, or may not, be required to work the additional Public/Bank Holiday in line with stated contractual terms;
  • Set a start date and deadline for holiday/time off requests;

Hospitality businesses should also take note that the Government has proposed extending licensing hours from 11.00 p.m. to 1.00 a.m. over the bank holiday weekend of the Coronation in England and Wales. Employers will need to prepare for this early on if they intend to ask staff to work longer hours, and decide if they will offer extra hours, perhaps with an overtime premium attached or if there are any relevant contractual clauses for compulsory overtime they could enforce (where it is reasonable to do so).

 

 

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

All information provided in this newsletter was correct at the time of publishing.

There are some important changes to statutory rates of pay that the Government have already announced, to take effect in 2023.

National Minimum/Living Wage Rate Increases & Accommodation Rate

The National Living Wage is to rise by 9.7% which is the biggest cash increase ever. It will go from £9.50 to £10.42 per hour.

At the same time, the National Minimum Wage (NMW) rates will be increased as follows:

  • from £9.18 to £10.18 per hour for 21 to 22-year olds;
  • from £6.83 to £7.49 per hour for 18 to 20-year olds;
  • from £4.81 to £5.28 per hour for 16 & 17-year olds; and
  • from £4.81 to £5.28 per hour for apprentices;

Accommodation Rate

If you provide some form of staff housing as part of the contractual arrangements, then the daily accommodation offset will apply. This will change from the current rate of £8.70 per day to £9.10.

The effect of accommodation rates on the National Minimum Wage or National Living Wage depends on how much an employer actually charges for accommodation.  It’s calculated by ‘pay period’, the frequency interval that someone is being paid. If the accommodation is free, it still affects the minimum wage.   It does not matter if the cost of the accommodation is taken from the worker’s wages beforehand, or if the worker pays the cost after they get their wages.

Some examples the Government website provides is based on the current rate:

Example 1: accommodation is free

John is 24 and gets £7.60 an hour. This is below the National Living Wage (which he should get as he’s over 23). He works 30 hours a week. He gets paid every 7 days (his pay period). His employer provides free accommodation 7 days a week. This brings John’s pay up to £9.63 an hour, which is above the National Living Wage of £9.50.

Calculation:

  • £8.70 (offset rate used when accommodation is free) × 7 (days accommodation provided in pay period) = £60.90
  • £60.90 + (£7.60 × 30 – the total pay in reference period) = £288.90
  • £288.90 ÷ 30 (total hours in pay period) = £9.63

Example 2: accommodation is charged below the maximum rate

Lisa is 22 and gets £9.30 an hour. This is above the National Minimum Wage. Her employer charges £6.50 per day for accommodation which is below the threshold of £8.70. No offset rate is applied.

The accommodation charge does not affect Lisa’s pay of £9.30 an hour.

Example 3: accommodation is charged above the maximum rate

Sam is 35 and gets £9.60 an hour. This is above the National Living Wage (which he should get as he’s over 23). He works 40 hours a week. He gets paid every 3 weeks (his pay period). His employer charges £9.50 per day for accommodation. Sam lives in the accommodation full time which is 21 days for his pay period.  This brings Sam’s pay down to £9.46 an hour, which is below the National Living Wage.

Calculation:

  • £9.60 (hourly rate) × 120 (total hours in pay period) = £1,152
  • £9.50 (accommodation rate) × 21 (days accommodation provided in pay period) = £199.50
  • £8.70 (offset rate used when accommodation is free) × 21 (days accommodation provided in pay period) = £182.70
  • £1,152 (total pay in pay period) – £199.50 (total accommodation cost in pay period) + £182.70 (total accommodation offset in pay period) = £1,135.20
  • £1,135.20 ÷ 120 (total hours in pay period) = £9.46

Increased Statutory Rates

The rate for 2023/24 for Statutory Maternity (SMP), Paternity (SPP), Adoption (SAP), Parental Bereavement (SPBP) and Shared Parental (SShPP) Pay are set to increase from £156.66 to £172.48 per week.

Additionally, the rate of Statutory Sick Pay (SSP) is also set to increase from £99.35 to £109.40 per week.

The average earnings an employee has to earn to be entitled to these payments will remain at £123.00 per week.

The rates for Statutory Redundancy Pay, Statutory Guarantee Pay, and Tribunal Awards are not yet announced.  We will send an update as soon as the new rates are published. They are usually expected in March.

Implementation

Exact dates of implementation are still to be confirmed, and it is worth noting that they do not all usually increase on the same date. It is expected that SMP, SPP etc. will increase on 2 April 2023, and SSP will increase on 6 April 2023. The NLW and NMW rates go up from 1 April 2023.

Extra Public/Bank Holiday in 2023

We will be sending out a separate newsletter shortly on this which will give you more information.

Changes to Existing Rights

Flexible working

There have also been some well published amendments to existing rights that may become law in 2023. Flexible working has been given a lot of attention following increased interest in hybrid working, and the Government’s announcement that they want to make it the “default” position. To do this, the Government have committed to the following changes.

  • Make flexible working a day-one right.
  • Require employers to consult with the employee before rejecting a request.
  • Allow two flexible working requests in any 12-month period.
  • Shorten response time to two months.
  • Remove need for employees to set out how the employer will deal with impact of request.

This is hoped to make flexible working more accessible, and the process less onerous on the employee. Crucially, however, it does not give employees any greater rights to demand flexible working. Instead, it requires more from employers during the process of negotiating flexible working, and places them under a greater burden if intending to refuse the request (such as the need to consult).

Redundancy protection

Under current rules, before offering redundancy to an employee on maternity, shared parental or adoption leave, employers have an obligation to offer them a suitable alternative vacancy where one exists. The proposal is that this protection will apply through an expanded period covering from when a woman tells her employer she is pregnant until 18 months after the birth. The 18-month window ensures that a mother returning from a year of maternity leave can receive six months of additional redundancy protection. The 18-month window will also apply to adoption and shared parental leave.

EU law

Finally, UK employment law is on the brink of massive change and we cannot yet say exactly what impact this will have. Legal changes have been proposed to “deal with” EU law that remain in place in the UK. The Retained EU Law (Revocation and Reform) Bill will automatically repeal retained EU law on 31 December 2023 unless legislation is introduced to keep it.

Laws that could change or expire include the following.

  • TUPE (unlikely to be scrapped, but could be amended to allow harmonisation of terms).
  • Rights to paid annual leave (such as how to calculate a week’s pay).
  • Maximum 48 hour working week.
  • Agency worker regulations.
  • Part-time and fixed-term worker regulations.

There are also nearly 60 pieces of European Health & Safety legislation that if repealed would have a significantly detrimental effect on the workplace.

Future Legal Rights

A number of Bills giving new rights are on their way to become law. However, due to the nature of this process, it is not possible to say with certainty if this will happen this year, or what the details of these new rights will be, as they may still be changed. Nevertheless, it is important to be aware of what might be coming so that initial plans can be prepared.

Carer’s Leave

One of these rights is that of carer’s leave. This new right, if passed into law in its current form, will give unpaid carers the right of up to a week of unpaid leave per year, to be used to provide care for someone dependant on them. This is similar to the existing right to time off for dependants, differing however in its time limit of “up to one week per year”.

Neonatal Leave and Pay

Another new right that may potentially come into law in 2023 is neonatal leave and pay. This right, applicable from day one but subject to a qualifying criterion for pay, will allow parents of very sick babies (defined as those admitted to hospital up to 28 days after birth, requiring a continuous stay of seven days or more) a period of up to 12 weeks leave to be with their baby in neonatal care. This will be taken in addition to existing maternity/adoption/paternity rights.

Tips

Another new right that is expected to come into law is one that will allow workers to keep 100% of tips and gratuities paid to them, whether by card or cash, or as a service charge. Employers will be under a duty to keep accurate records of tips distribution; employees will have a new right to bring a claim if not.

 

Our consultants would be pleased to advise you on any element of the issues arising from this newsletter.

One of the biggest challenges facing small employers revolves around managing the long term sick and the disabled.

To help clarify employers’ duties, the HSE has published new guidance. It is based around the principle that every member of staff is entitled to good health and safety practice, especially those who are disabled or suffer from protracted health conditions.

As we face a talent shortage, this new guidance is focused on support for such workers, helping them find and stay in work.

They have split their key principles into 8 sections – an overview and then 7 crucial areas that are explained in depth, and which can be read on their website here.

One to one consultations and conversations

In all situations, employers need as much information as possible about their workers’ situations and challenges.

So, start with open and honest conversations with them, which typically start at return to work meetings, and during periods when people are off on long term illness. Policies should make it clear that it is an employee’s responsibility to keep in regular contact with their employer, and Managers need to not shy away from such conversations.

These are often more effective if held on a one-to-one basis, allowing Managers to listen carefully to what the employee feels they need, and agreeing a course of action with them.

Once the employer understands a worker’s needs, they can make suitable, reasonable workplace adjustments. This might include significant changes to the way they work, or support for their return to work.

Supportive and “enabling” workplaces

The HSE places great emphasis on how the right workplace culture can create the right environment for all workers to flourish.

But this does not just happen because the organisation says so; Managers need to be accessible, so they can listen and help their staff. In particular, they need to understand the pressures and challenges affecting staff at work and outside.

The HSE also talks about the dilemma we all face, knowing enough to be able to help and to remove barriers that disadvantage them, while respecting worker privacy and confidentiality and dignity.

They also suggest signing up to the Disability Confident Employer Scheme.

Inclusive approach

Truly inclusive workplaces can lead to increased productivity, a larger talent pool, greater creativity and more innovation.

Workplace practices must also be fit for purpose. With employers giving clear, concise, easy to understand instructions that can easily be followed by all workers. Such an approach is crucial to identifying and removing workplace barriers.

Providing additional advice

For the employee, the government provides some good advice of their own – Access to Work.

But employers should not rely on just this; they should have their own advice schemes. Provided, where appropriate, through access to their own HR professionals, and not forgetting Occupational Health providers.

Providing access to free counselling services is an increasingly useful benefit for employees, and is not as expensive as many employers believe, if you shop around.

Work barriers and their impact

Employers need to step back and look at some of the work barriers people face. Not only do these affect recruitment, they also prevent the effective integration of new recruits, and continue to affect staff throughout their careers.

Focusing on what workers can do is far more effective and encouraging than highlighting what they cannot do.

The HSE discusses barriers that are physical – they cite as examples poor access to buildings, or poor toilet facilities, or even, for remote workers, video calls with no subtitles. Perhaps the organisation has not invested in or enabled IT that supports text reading.

Or, the barriers can be organisational – perhaps your sickness and absence policies are too rigid and do not consider each person with their own individual needs. They can be attitudinal – assuming workers cannot add anything in certain areas, or that they would not want to attend social gatherings.

Workplace adjustments

Many employers struggle with the concept of workplace adjustments. But remember, these have to be reasonable and putting them in place may be much less disruptive than having to recruit and train new staff members.

And, many adjustments do not really cost anything, they just need a new mindset. Things like new shifts or work patterns, assistive software, a phased return to work and improved communications. And, quite often, the solution is a temporary one anyway, especially if the long-term convalescent returns to full productivity, or the disabled worker needs time to adjust.

The HSE recommends recording such agreed adjustments in a ‘passport’, which we would call a return to work plan that is regularly reviewed thereafter. This is especially useful when workers’ jobs or Line Managers change.

Reviewing modifications

When a work activity or workplace changes, make sure that you review them. Further adjustments may be needed, or they may cease to be relevant.

Communications

Some workers may have sensory problems, dyslexia or even have never learned to read.

So be careful when you know this to be the case. Make sure you look at the format, medium and content. Useful support tools can include British Sign Language, Easy Read, and audio to text.

There should also be sufficient contrast levels between the background and text. Formats must also be accessible to screen readers/voice-overs and other assistive technologies.

Support for Managers

Managers need support too. Do not forget to give the appropriate training to understand how to support their staff. And, make sure they have the right support when team members are not as productive as they might be.

Sickness absence and a return to work

In these challenging times, it is sometimes tempting for staff to just plough on regardless. Especially when sickness policies mean absence will make a real impact on their earnings.

Likewise, active support for an absent worker encourages a return to work. It reduces the risk of someone eventually stopping work altogether, especially if they have been off for a long time.

Contact during sickness absence

Keep in touch. Not only do you have an interest in your workers welfare, you also have a responsibility to them. Regularly check any worker on sickness absence, assessing their wellbeing and making them feel valued and remembered.

Occupational health support

Occupational health services can help with workplace assessments and adjustments, advice on referrals to rehabilitation and support services, advice on returning to work and help to promote good health.

A return-to-work plan

A crucial part of any long-term sick employee’s reintegration. It should be prepared with their input and agreement before they return to work.

Workers need not necessarily resume their normal levels of activity and a supported return can aid their recovery.

Comment by BackupHR

The HSE have long been criticised for overly focusing on the prevention, where possible, of physical health caused by accident or injury, and have only more recently focused on issues such as mental health.

With the Government also vocalising on wanting to encourage more long-term sick people back into the workplace, this document is welcome, if somewhat tardy in its appearance.

 

 

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

We have had a few years of workplace absences, primarily of course down to Covid 19. But as appalling weather conditions appear to be about to hit the north and east of the UK, employers are asking exactly what they can or cannot do to make sure their organisations continue as normal. And, what they can and cannot insist their employees do in the face of adverse weather.

Until the start of the pandemic, the law was pretty clear that employers were only really responsible for their employees once they had turned up at work, prior to that in most cases, it was the employee’s responsibility to get there.

Certainly, with widespread infections and the threat of contagion on public transport, that debate has moved on a little since March 2020. However, we suspect that the principles for bad weather remain the same as before.

The good news for many employers is that they have been used to having a workforce who can work from home; bad weather does not change that. But, for those employees who continue to be required in the workplace, what is the situation?

The general principle has always been that employees are entitled to be paid when they turn up to work. So generally, if an employee cannot make it to work due to bad weather, their employer is not obliged to pay them. Traditionally, days lost to adverse weather can be deemed to be classed as Time Off In Lieu (known as TOIL) or unpaid leave by the employer.

Whether that is a policy that will endear you to your employees, however, remains a moot point. For these situations where employees cannot or will not get into work, there are a number of things you could do.

  • Agree with your staff that they should take the days as holiday. This stops them having to struggle to work in really adverse weather conditions, and means it does not cost the organisation anything.
  • Employees can agree to make up the hours once the weather has improved. Obviously, in the case of prolonged bad weather, this may become impracticable, but for a day or so it may be a sensible solution.
  • You could reallocate work to those individuals who normally do not work from home to carry out some tasks that need doing, clearing up your database, or other administrative tasks that can be done from home.
  • For organisations that have more than one location, you could close a particularly badly affected workplace and send them to other locations.
  • Or, you could throw your hands in the air and decide that work is simply not possible today, we will reconvene tomorrow when conditions have improved.

Bad weather occurs from time to time, having a consistent policy to deal with bad weather conditions and informing your employees exactly what is expected of them is important. All of our clients have such policies, usually termed Disrupted Travel Policies, that they can turn to, as can their workforce to see what the general approach should be.

It will not give an answer to every individual situation but it should give a structure that then allows Managers to make informed, sensible judgments.

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

As we start the Festive Season, and the final planning for your Christmas Party is taking place, it is worth reminding staff what is expected of them in terms of behaviour.

While things are not quite back to normal after the pandemic, and there may have to be some allowances made for the most vulnerable, Coronavirus is not an employer’s main concern now.

Even in a normal year, organisations have to lay down some ground rules, or else someone could misbehave, let themselves or the organisation down, and even lay themselves open to disciplinary action.

And, even if the pandemic feels as if it is over, you will need to do a proper risk assessment, identifying the problems, risks and the safest way to operate.

Everyone has to recognise these are still not quite normal times, and extra measures may be required:

  • Anyone feeling ill should not attend
  • Alcohol could be restricted or banned
  • The unvaccinated could be excluded or separated

It is still work

Just because a Christmas party takes place outside of work hours, and often in rented premises, it does not mean that any misconduct falls outside of the employer’s control. In certain circumstances, even private social gatherings, if they are identifiable as members of the organisation, can fall under the employer’s rules, and the employer can even be held responsible for the (mis)conduct of their staff.

The general rule is that action can be taken against any off-duty misconduct if it is in some way damaging to the organisation’s business interests. or complaints are raised against the perceived inappropriate and/or unwelcome conduct of work colleagues (or their guests). Practically speaking, if an employer has organised a Christmas party for their employees, it is highly likely that the event will be classed as ‘work’, which means that at least a modicum of responsible behaviour will be required.

If Management are going to attend, however, it is even more legitimate to expect employees to be on their best behaviour. Such a situation means that any transgressions can be treated more harshly, simply because any inappropriate activity is likely to be more damaging to the organisation’s interests.

By far the most common misconduct issues at parties are alcohol-related. In many cases, senior Managers (and HR professionals) will simply have to accept it as highly likely that a proportion of the workforce will end up in various states of intoxication.  So, discipline employees if their drunken behaviour is damaging to business interests, whether as a result of harassment or violence to a co-worker or a third party, or even simply by harming their employer’s reputation.

If the decision is taken to dismiss an employee for drunken misconduct, it should be understood that Employment Tribunals will always evaluate the situation more critically if employers or Managers have contributed to that employee’s intoxication, either by providing them with alcohol themselves, or granting them the use of a free bar.

Aside from discriminatory exclusion, you may also need to deal with harassment issues at the party itself. It goes without saying that any entertainment that could amount to harassment by a third party (a racist comedian would be the obvious example), should not be booked.

But the danger is that the relaxed nature of an office party can also lead to actual occurrences of harassment, or even violence. When investigating complaints, drunkenness or high-spirits should never be considered a sufficient excuse for inappropriate behaviour, or as evidence that the victim of alleged harassment was a willing participant.

Such matters should always be evaluated with a sober mind in the cold light of day, to ensure that they are dealt with in a fair and reasonable manner, and in full compliance with the organisation’s internal policies and procedures.

After the party

Finally, even when the party is over, there are still some important issues to consider. In arranging the event and providing the alcohol, employers will be seen to shoulder some of the responsibility for the outcome.   Therefore, it may be prudent to arrange suitable transport in order to take home any revellers who might be the worse for wear, or just close to/over the legal driving limit. Responsible behaviour here could range from making sure everyone is aware of the telephone number of local taxi firms, up to going the whole hog and providing all staff members with transport on minibuses.

Of course, the fact that an intoxicated employee has managed to find their way home is no guarantee that they will turn up for work the next day.  As a result, employers should always clarify when staff will be expected to arrive in the office the following morning, particularly if the party is held on a weeknight. Any unauthorised absence can then be addressed using the Attendance and Sickness Absence policy.

In summary then, if an employer wants to have a stress-free Christmas party season, they might benefit from following the steps below:

  • Discuss now whether staff are still keen to party, want to defer it or celebrate another way.
  • Make sure you do a proper risk assessment.
  • Prior to the event, make sure that everyone is aware of how they are expected to behave, and whether or not they are expected to come into work the next day.
  • During the social event itself, it can help to have a responsible Manager present to monitor staff behaviour, and perhaps have an informal chat with any party-goers who might be taking things a bit far.
  • At the end of the party, consider supplying or arranging transport, particularly if the organisation has been providing free alcohol.
  • When it’s all over, ensure any complaints are investigated fairly and comprehensively in accordance with relevant procedures.

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

As if organisations have not got enough to worry about. Already hit by rising costs, wage inflation and talent shortages, National Grid has raised the possibility of rolling power cuts across this winter.

While they emphasize that the likelihood of this happening is low, how well are you and your staff prepared should the worst happen?

The risks clearly vary between organisations. Does everybody work centrally? Is the organisation protected from power cuts because of what they do? Or do you have a lot of homeworkers, one or two of whom could be out of action for up to 3 hours?

Like most other risks, the sooner you start preparing the better. Obviously, the organisation needs to decide on business continuity in the event of a cut, but also how do they protect their vital data, stock and their workforce? Especially as this is most likely to happen when demand for power is at its highest, and the weather is likely to be at its coldest.

To start with, consider the following questions, whether you have answers to them

  • Do you have a backup generator or emergency power supplies for your main places of work?
  • Can you easily divert phones? Can you do so remotely if necessary?
  • How do you ensure essential equipment keeps working?
  • Are staff instructed to keep their mobiles and laptops fully charged?
  • Do they need backup power packs for an emergency, or is, for example, working from the car a possibility?
  • Do you need to pay particular attention to data backup during power cuts?
  • Do staff who need to stay connected have enough data on their company mobile phones to allow them to access the Internet?
  • Can they switch to an alternative location, such as a hotel, café or a temporary office?
  • Do you need to source emergency lighting, even if it is only torches and battery powered desk lamps (we do not recommend candles!)?
  • What is your plan for reopening after a power cut, especially if the power comes back on after everyone has gone home?

There are probably plenty of other questions you need to consider, but putting these plans into place now, and communicating them to your staff means there is less panic and more planning if the worst-case scenario happens.

And, if you need to order the batteries, torches or emergency power packs, it might be better to do so now before the panic buying starts.

Finally, consider how this will affect your staff themselves. What is your policy if you have to close a work location? If the power cut happens during the day, with sufficient light, do you have any alternative work that people can do that does not rely on power? Perhaps that stockroom has needed clearing for years, although all this is needed repainting or for a deep cleanse of the kitchen. There are probably always useful jobs that can be done if nothing else is possible.

The Government has suggested that vital infrastructure will be protected. Does that include schools and nurseries? If not, will parents and carers suddenly have to drop everything to look after their children? What will the organisation’s policy be in that situation?

This winter promises to be challenging enough for organisations, should you be unlucky enough to be hit by a power cut make sure you are well enough prepared.

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

Having been extended on a number of occasions, the COVID adjusted Remote Right to Work Check will finally come to end on 30th September 2022.

These provisions have been in place for more than two years, allowing employers to remotely check employees’ right to work in the UK, without meeting face to face.

As the threat from COVIDrecedes, these emergency measures are no longer needed. Especially as they have now been replaced by a mixture of in-person manual checks and a number of online checks.

One of these on-line checks is a new system. From 1st October 2022, employers can use certified Identity Service Providers (IDSPs) to complete their digital right to work checks for British and Irish workers. These checks use Identity Document Validation Technology (IDVT), another new acronym from the Government.

Importantly, some of the providers offer a full Right to Work checking service, greatly simplifying the process for all employees, wherever they are from, if you do not mind paying for it.

These are significant changes to the previous procedures. Those involved in employing anyone need to study these matters carefully. Full details, and they are very long and involved, can be found here.

Employer’s guide to right to work checks – GOV.UK

Below, we have summarised the main requirements. Remember, we are HR experts so if you are not sure, consult an immigration expert.

Legitimate Checks do not need to re-done

Originally, the Government had stated that once the temporary Remote Checks period had come to an end, all checks would have to either be verified or be repeated in person. But now that is no longer necessary.

So, the good news is that any legitimate check, properly carried out before 30th September 2022 will not have to be re-done, even if carried out remotely.

Of course, if such checks reveal the Right to Work is a time limited one, they will still need to be followed up at the appropriate time.

Are Right to Work Checks mandatory?

According to the Government’s own website, RtoW Checks should be done every time a new employee join. And, this requirement applies equally to UK, Irish, European and workers from anywhere else.

Exactly how to do the check will vary depending on their nationality and their status. The Government has a good questionnaire to show what type of check is needed.

Check if a document allows someone to work in the UK – GOV.UK

This is not a full list below, as there are too many small subtleties to list here, but it does give a quick guide as to what might be required. Broadly speaking, most overseas citizens need to be checked on-line for free, British and Irish citizens can be checked manually for free or on-line for a fee.

British and Irish Citizens

For the time being, the traditional, in-person manual check can still be done for this group. This will generally be done with the employee’s passport. A full list of valid documents can be found here Right to work checklist – GOV.UK

But the IDSP on-line check has now been introduced. To date, more than 10 providers have been approved, with the cost of a single check as low as £9, though it does vary between providers. A current list is here: ID Service Providers – GOV.UK

The crucial point is that the test is to prove the identity of the individual and that they are British or Irish citizens, and so have a Right to Work in the UK. Employers will have to either verify their identity:

  • With a traditional in-person, manual check on valid (not necessarily current) documentation.
  • For those with a valid, up-to-date Biometric passport, an on-line check with an IDSP can be done remotely at a cost.

EU, EEA and other Overseas Citizens

The EEA includes citizens of the EU, Iceland, Liechtenstein, Norway and Switzerland.

In general, everyone from outside Britain and Ireland falls into three categories:

  1. Those with Indefinite Leave to Remain in the UK
  2. Those who arrived in the UK on or before 31st December 2020, and who have successfully applied for pre-settled or settled status (EUSS)
  3. Those with none of these statuses who can now only work in the UK on a sponsored work visa

The first category can still be checked manually if they have the right documentation or, if they have an online account, through the Home Office checking service – they will need to provide a Share Code to allow access to their record.

The second category can only be checked with a share code in a similar fashion. As you need to check their EUSS status, this is not obvious from their documentation.

The final category can only be employed on a work visa now. To do that, you will have to become a Sponsor (this takes 8-12 weeks) and to pay for the relevant visas. It is not cheap and beyond the scope of this article.

But if you need to know more, this is a good starting point: UK visa sponsorship for employers: Overview – GOV.UK

Online Checks

Many employers have become familiar with the online check for EU and EEA nationals who qualify for settled and pre-settled status.

But, until 6th April, employers had also been able to take copies of their Biometric Residence Cards and Permits. This will no longer be possible and the free online checking service will be the only way to check this and show a “Statutory Excuse”.

Permanent or Temporary Check (that needs to be repeated)?

Carrying out Right to Work checks is something that all employers should know about. It is mandatory to carry these out for all new employees before they start work.

For those that have a permanent right to remain in the UK – British and Irish Citizens, those with EU Settled Status (not pre-settled) and those with Indefinite Leave to Remain only have to be checked once.

Those with a time limited Right to Work will have to be checked again when that time runs out, preferably just before.

It is the re-checking process we suspect which is where most employers will fall down. Many are quite assiduous at checking people’s Right to Work when they first joined the organisation, but singularly fail to follow up and recheck their permission as prescribed by the law.

Make sure you diarise such checks and have a good follow up system.

Audit your current employee records

Any audit of your workers could lead to embarrassing situations, and indeed, we have dealt with employers who have found themselves in this situation.

In almost all cases, it has not meant that individuals are not allowed to work in the UK, simply that their paperwork is not up-to-date, and in some cases, the individual them self has not renewed it.

The risk to the employer, however, is an expensive fine, so make sure you have a robust system in place, especially if you employ a lot of existing non-UK nationals. If you do not employ many/any non-UK nationals, do not think it is unimportant. Just checking people who look/sound different is a good way to generate a race discrimination claim.

The UKVI has stated its intention to put all checks online by 2024.

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice.