Flexible working – Burden? What burden?

Conflicting advice has emerged from the Coalition Government on the future of flexible working in the workplace.

 

With rumours of scaling back flexible working rights or giving everyone the right to request flexible working, there is a message that is being missed. We have preached about maintaining a work/life balance and how important it is for fathers to take an active role in their child’s upbringing and then we are surprised when people want to do it.

 

The right to request flexible working is available to anyone who has a child under the age of 17, or 18 for a disabled child or is caring for an adult dependant. With an ageing population, that covers a lot of people.

 

The employee must have 26 weeks continuous service to request a variation to their working pattern. The business may deny the request if it demonstrates that it is not workable for a justifiable business reason – real not imagined!

 

Dealing with flexible working requests can be daunting for small businesses. There are statutory rules on how to process these requests, and most small businesses do not understand the importance of responding within timescales.

 

While there were only 277 cases relating to flexible working out of over 218,000 claims in 2010, most are settled out of court because of the cost of defence and the impact on the business. You cannot defend the indefensible when failing to follow a statutory procedure.

Simon Morgan, Director of The HR Dept (South East London and North Kent) says “If an employee is engaged, happy and spreading the word about your brand and delivering value to the business then flexible working can be a powerful resource. Unfortunately flexible working can be seen as a taboo subject, often because of the strict rules for handling requests and the fear of consequences as opposed to the benefits if a request is accepted and managed properly for the business.”

The HR Dept specialises in advising small and medium sized businesses on all employment issues.

http://www.hrdept.co.uk/se_london.htm

As the winter season approaches some winter health and safety tips

This week we have a special guest blog from Maxine of The HR Dept’s Health and Safety Service. Get in touch via twitter @MMatthewsHRHS

As the winter season approaches, employers should be hoping the only ‘trips’ their staff experience this winter are for late winter sun and skiing. Slips, trips and falls account for 33% of all major injuries in the workplace - which results in 2 fatalities a year. On average there is 1 slip, trip and fall every 3 minutes, an alarming number of preventable accidents. So with figures so high how can we reduce these, especially with winter and the inevitable snow creeping up on us?

Maxine has provided some top tips on how to avoid slips trips and falls in the workplace this winter season:

· Carry out work place inspections - ensuring nothing is left in walkways for example; boxes, trailing cables, work equipment.

· Get your staff involved in hazard spotting, carry out workplace risk assessments.

· With the cold and icy weather, ensure outside areas are gritted to prevent slips and falls. Encourage staff to wear suitable footwear during the cold snap, high heels look good but are really not practical on ice and snow!

· Ensure spillages and melted snow are cleared up – without forgetting the all important yellow sign.

· Implement an efficient housekeeping procedure.

· Ensure any damaged flooring is replaced or fixed.

This should get you off to a downhill start on controlling trips in the workplace…

The HR Dept is promoting awareness of Health and Safety in the workplace, and wishing all places of work an accident free environment.

Anti Bullying Week " Stop and think - words can hurt"

Anti Bullying Week, with the theme “stop and think - words can hurt”, a campaign that the HR Dept echoes.

Creating a policy to combat bullying and harassment is great down on paper, however it is the example set by management and proactive actions of all staff which will determine the success of any policy, especially in regards to action against bullying and harassing behaviour.

There have been several cases in the past accompanied by hefty compensation payouts for victims of bullying and harassment where is it is clear there have been fundamental failures in regards to dealing with incorrect behaviour.

Being left out in the workplace can be a form of bullying

Bullying and harassment comes in many shapes and forms and is defined by the eye of the beholder. There is no exhaustive list stating ‘this is bullying or this is harassment’ but it comes down to not treating another human being with dignity and respect.

The ability of management to set an example but to also spot the signs of any incorrect behaviour in the workplace is crucial in order to deal with any issue promptly and professionally.

Delivery of your policy is fundamental and here is The HR Dept advice:

Foster a culture of openness

• Zero tolerance on bullying - set this out from day one
• Treat everyone with dignity and respect - this is your brand and reputation
• Investigate thoroughly any allegation of wrong doing
• Be aware of the rise of social media and actions of bullying/harassment can take place outside the actual work environment

Qualifying period for unfair dismissal to go to 2 years next April

Will the Government’s proposal to extend the qualifying period for unfair dismissal ‘give employers, especially smaller ones, more confidence to hire’ (CBI) or be ‘a charter for bad bosses’ (TUC)? It seems that people are already forecasting that it will fall foul of the law of unintended consequences – there will be more claims that do not require a qualifying period of service.

Not just more discrimination claims but more claims for asserting a statutory right (eg making a protected disclosure (whistleblowing), raising concerns about health and safety, applying for flexible working, even pursuing the statutory right to raise a grievance. And when claim fees are introduced in April 2013, the costs of settling disputes could well be higher as claimants seek to recover their claim fees!

The 2 year qualifying period could be interpreted as indirectly discriminating against women and young people who tend to have shorter service than adult males. When the qualifying period was last raised to 2 years, it was challenged in a famous case that ran throughout the nineties (Seymour Smith case).

Finally the ECJ held that 2 years was discriminatory but objectively justifiable on social policy grounds.  It remains to be seen whether this would be the case over 10 years later.  

For more information visit:  www.hrdept.co.uk/se_london.htm

Pensions – are you prepared?

Are you aware? ‘Auto-enrolment’ is the biggest pensions challenge for employers – EVER.

There are new legal duties on employers, starting from October 2012, to auto-enrol eligible employees into a pension scheme and to make contributions for those employees (unless they opt out). Larger employees will be covered first but over the next 4 years every employer will be affected, even if they employ only one person.

Most large employers already have a pension scheme but it is the small and medium sized employers that are going to be affected most, as many of these currently have no pension scheme and incur no pension costs at all.

The FSB has estimated that the average small firm – those with 4 employees earning an average annual salary of £25,000 – will pay at least an extra £2,550 per year in administration and pension costs.

The rules are complex, the costs potentially significant, the administration a sizeable headache and there are significant penalties for getting it wrong!

You will need to know your legal duties, understand the practical considerations and how you can optimise your expenditure by setting the right strategy, designing the most suitable plan, controlling costs and implementing changes effectively.  

How much will it cost?

Employer contributions will be 1% of salary on an employee’s qualifying earnings from October 2012 rising to 2% in October 2016 and eventually to 3% by October 2017. Total contributions made up between employer and employee will be 2% from October 2012 and then increase to 5% in October 2016 before increasing to 8% in October 2017.

Employers can use the Government’s automatic enrolment scheme, known as NEST (National Employment Savings Trust) but there are certain restrictions on this and it may be better to set up your own auto enrolment scheme with a pensions provider.

The majority of employees will be eligible for auto enrolment, apart from very low earners (currently earning less than £7,474 a year) those who fall outside the age rules and those who decide to opt out. 

When will I be affected?

Large employers will be affected from the outset, ie October 2012. Smaller employers will be phased in, by being given a ‘staging date’ to have a scheme in place based on their PAYE reference number. For firms of 50 or less, these dates will be spread out between early 2014 and early 2016. 

What are the employment considerations of auto-enrolment?

Auto enrolment will mean greater costs for employers in future, so you may have to review your current pay and benefits structures. For example, it will not be possible for pensions to be ‘optional’ in flexible benefits packages. You may have to implement pay freezes or reduce projected pay increases to fund the employer pension contributions you will have to pay in due course.

Do you know how to make changes to employment contracts to incorporate changes to terms and conditions?

There is no choice but to apply the new statutory pensions rules. But what if you need to make other changes to terms and conditions? Always consult with staff about changes you wish to make and seek agreement. If you cannot reach agreement, you can impose changes but this is always open to a legal challenge. An alternative but potentially equally risky strategy is to dismiss staff and offer them re-engagement on new employment terms. 

For more information visit:       http://www.hrdept.co.uk/se_london.htm

Follow me on twitter  @HRRESCUER

Can you still have a compulsory retirement age? Yes – but….

A recent survey showed that 46% of employers felt that the phasing out of the default retirement age will have a negative impact on their business. 22% believe they now have less capacity to take on younger employees.

It is possible for employers to objectively justify a compulsory retirement age, but clearly not many have decided to do so! However, there have been some recent cases where a retirement age has been justified.

The ECJ has held in recent cases from Germany and Bulgaria that it was justified to have a compulsory retirement age of 68, eg to encourage new entrants to a profession (dentists and teachers.) In a further German case however it was held that it was not justified for Lufthansa to have a compulsory retirement age of 60 for its pilots on health and safety grounds when the national retirement age for pilots in other German airlines was 65. A leading case in the UK concerning the compulsory retirement age of 65 of a partner in a law firm is due to be heard by the Supreme Court in January 2012. So far the firm has successfully argued for retaining the compulsory retirement age.

These cases suggest that it is possible in principle to have a compulsory retirement age. It may be appropriate in certain specified professions, eg fire fighters, or for certain limited groups within an organisation, eg senior managers. A compulsory retirement age could of course be older than 65.

Until we have more case law, it is best to tread very carefully...   

Can you discuss retirement plans with older workers? Yes – but…

You can, but it is advisable to incorporate these into discussions about career plans for all staff to avoid the risk of being accused of age discrimination.  Even the Government’s Employers Charter says ‘an employer is entitled to ask an employee about their future career plans including retirement’.

If you do not have an appraisal process, this is a good time to be thinking of introducing one, since you can ask all staff about their future career plans and no one asked about retirement can say they are being treated differently from younger workers.

for more information visit:  http://www.hrdept.co.uk/se_london.htm

National Stress Awareness Day 2011

Tuesday 2nd November marked National Stress Awareness Day, with the theme this year being ‘Wellbeing and Resilience at Work’. With cut backs across the board, especially in small and medium sized businesses and ‘survivors’ of redundancies picking up the slack, we at The HR Dept are not surprised to hear that stress levels in the workplace have doubled in the last 4 years.

We always advise employers to have a proactive approach in HR, but particularly with issues related to stress. Kate Stuart, a massage therapist who works through one stress related knot at a time, has provided a great way for employers to spot the signs of stress in their workers:

S -houting

T - earfulness
R- eddening or blushing
E- xhaustion
S- leeplessness
S- ighing

It was recently revealed that stress was the main cause for long term absence, as demonstrated by António Horta-Osório, Chief Executive of Lloyds Banking Group who has taken temporary leave due to fatigue. Kate adds “where the responsibility of the level of care is falling on the shoulders of employers, offering well being services for employees could be a small investment”.

By identifying issues early, employers can prevent stress related absence and waning performance.

http://www.hrdept.co.uk/se_london.htm

Unfair dismissal – are you breathing easier?!

The Government has announced that it intends to increase the qualifying period for an employee to be able to claim unfair dismissal from one year to two years in April 2012. The Government’s aim is to increase confidence in the business world to get more employers to take on staff to boost the economy and get more people into work.

The HR Dept is all for any reduction in the red tape of employment law and this may assist in increasing confidence, yet the burden of an employment tribunal for any size business is always an ever present threat. Our view is that there will be an increase of workers with under two years’ service making discrimination, health and safety or whistleblowing claims, which do not require any qualifying period of employment. These are also more costly and complicated claims. Average awards for discrimination claims are about double the average for unfair dismissal claims. What is also often overlooked is the cost of actually defending a claim in terms of time and money as well as any award.

The facts are that the qualifying period for claiming unfair dismissal has chopped and changed over the years. In 1971 it was six months.  It was then increased in 1980 to one year (two years for small firms with 20 or less employees) and then increased again in 1995 to two years (regardless of the number of employees or size of the employer). Then finally in June 1999 the qualifying period was reduced to one year. 

Regardless of the qualifying period, our advice is always when considering dismissing a worker, take advice from your HR Dept advice line.

Another announcement sees that workers will have to pay a fee for lodging a tribunal claim from April 2013. However there is plenty of consultation that needs to take place before more details emerge including the level of the fee, which is expected to be as much as £250 to launch a case and a further £1,000 if it goes to a hearing.

Higher fees could be charged where litigants are seeking £30,000 or more in compensation and the fee would be returned only if the case was successful.

There will be exemptions for poorer paid workers, but this is a positive step forward to remove vexatious claims that clog up the system and should put off serial litigants!