AZETTELawyers for today’s employers

JANUARY 2014 // FOCUS ON: FAMILY

the quarterly newsletter of FG Solicitors.

IN THIS ISSUE //HOW WORK AFFECTS FAMILY LIFE

CHAIRMAN'S VIEWWe await more accurate figures and time for employees’ representatives and insurers to adjust to the changes before drawing more concrete conclusions as to the impact of the introduction of tribunal fees.

In the meantime, it is unfortunately safe for employers to continue to assume that some individuals will not be deterred from bringing claims by minor impediments such as additional cost. What has not changed in 2013 is the best method of defending such claims; having in place an audit trail, which frequently starts with contracts, policies and procedures – perhaps the new year is an appropriate time to update these?

With that thought in mind, I wish you a happy and prosperous 2014, during which you can rely on us for employment law and HR related updates and advice; a glance at our legislation update will tell you that 2014 is looking at least as busy as 2013.

Stuffed – the feeling for many after the festive season and also an apt description of 2013 in respect of employment law changes.

Looking back at the year, the change that stands out for me was the introduction of employment tribunal fees at the end of July 2013. Early indications are that the result of this has indeed been the anticipated reduction in employment tribunal claims. According to the Ministry of Justice’s provisional figures, the number of claims in September 2013 was reduced to 1,000, as compared to a considerable 7,000 claims in July 2013. However, these figures may later be revised upwards as claimants may have been applying for fee remissions, delaying the acceptance of their claim.

Taking the introduction of these fees, a reduction to the maximum compensatory award for unfair dismissal and a 2013 study showing that only 49% of claimants were paid any tribunal award in full, there appears to be serious disincentives for employees to bring a tribunal claim.

Hello again FGazette readers!

2 Deanery CourtGrange Farm

Preston DeaneryNorthants NN7 2DT

Email: info@floydgraham.co.ukTel: +44 (0)1604 871143

www.fgsolicitors.co.uk

IN THIS ISSUE //

page 3 //fgC news

page 4 //FAMILY FRIENDLY WORKPLACE

page 6 //MATERNITY, PREGNANCY & REDUNDANCY

PAGE 8 //ZERO HOURS CONTRACTS

page 10 //CASE STUDY & our next seminar

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S O L I C I T O R SLawyers for today’s employers

NEWLY QUALIFIED SOLICITOR

LEXCEL ACCREDITATION RETAINED!

We're delighted to announce the launch of our new website! Following a strategic review, we decided that it was time to replace the old website with a simpler and more advanced system. We think our new site will be easier to use and supports our move towards a greater online presence. We also now have a new name - FG Solicitors - replacing Floyd Graham & Co (but don’t panic, the big guy’s still with us!). Please visit www.fgsolicitors.co.uk and take a look at our new website. This brand change is purely cosmetic and the company will continue to deliver the same level of tailored legal support and solutions to our clients.

So what's new? We've refreshed our brand and completed a total redesign. We’ve tied it all in with our social media activity, as well as improving various areas of the user experience.

We have:• Designed an easier route for clients

to login and access our services.

• Crafted a simpler interface and more information about the services we offer.

• Made it easier to get in touch and find out more about our company.

• Provided an easy sign up form for our latest updates and newsletters.

• Built a specific area where you can view and register for our latest seminars.

• Added our blog to the site under the "News" tab.

The new site includes many more updates and gives us a platform to build on as we aim to grow our online presence. As we grow, we will continue to add new features to the site in the future - so watch this space!

We know you're busy, but if you have a minute, take a browse and see what you think of the new site, as we would love to hear your feedback and thoughts. Please contact us should you have any questions - fgmedia@floydgraham.co.uk

We are delighted to announce that Joanne Duck

has qualified as solicitor following her cross-qualification from the bar. Joanne joined us in February 2013 as Legal Assistant and successfully cross-qualified in November 2013.

Hooray! Our hard work has paid off and we've received

some fantastic feedback in our recent Lexcel Audit report. Thanks to the whole team for their effort in maintaining such high standards. Our Lexcel Accreditation continues for another year!

SEE WHAT WE’VE BEEN UP TO AT FG SOLICITORS H.Q.FG

NEWs

WE HAVE A NEW WEBSITE!

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CREATING A FAMILY FRIENDLY WORKPLACE

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Following much consultation, the Children and Families Bill (“CFB”) is set to become law in early 2014, but what does this mean for employers?

Changes to the current law fall into 3 categories g

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1. Flexible Working

Currently an employee with at least 26 weeks’ service can make a flexible working request (subject to certain eligibility criteria) for the purposes of either caring for a child or to assist an adult in need of care.

A statutory ‘right to request’ procedure must also be followed. From spring 2014, the right to request flexible working will be extended to all employees with 26 weeks' service, rather than just those employees who qualify as parents or carers, and employers will no longer be required to follow the cumbersome statutory procedure.

Instead, employers will be allowed to use their own HR procedures, providing they consider requests in a reasonable manner and notify the employee of their decision within 3 months from the date of the request.

ACAS have produced a draft Code of Practice to assist employers, which will be finalised to coincide with the implementation of the flexible working provisions of the CFB. The main principles are:

P Employers should talk to the employee as soon as possible after receiving a written flexible working request to arrange a formal meeting to discuss the request. The employee will have the right to be accompanied.

P Following a formal meeting, the employer should consider the request. This involves considering the request from the presumption it will be granted unless there is a business reason for not doing so and carefully weighing up the benefits of the request for the employee and the business against the costs of implementing the changes.

P The decision should be made in writing.

P A request should only be rejected for one of the 8 specific grounds currently set out in the Employment Rights Act 1996.

P Employees should be able to appeal against a rejection.

P All requests, including any appeals, must be considered and decided upon within 3 months from first receipt, unless an extension is agreed with the employee.

The Code, when finalised, will be taken into account by Employment Tribunals when considering relevant cases and it is therefore important for employers to fully understand the principles and amend their HR procedures accordingly.

2. Shared Parental Leave & Pay

An employee’s current rights to leave and to pay following the birth of their child fall into 3 main categories:

● maternity leave and statutory maternity pay;

● paternity leave and statutory paternity pay; and

● parental leave.

From 2015, the CFB will effectively allow parents to share the statutory maternity leave and pay that is currently available only to mothers, and will allow adoptive parents to share the adoption leave and pay currently only available to the primary adopter. In summary:

P The current entitlement to 52 weeks of maternity leave (39 weeks of which is paid leave) will remain as the default position for all employed women, as will the 2 week period of compulsory maternity leave which must be taken by the mother.

P However, the remaining leave and pay after the initial 2 weeks will be available for sharing between the parents. Consequently, the mother will be able to end her leave early and allow her partner to take the remaining balance. The couple may choose concurrent leave as long as the total time taken does not exceed what is jointly available.

P It will be up to the employees to propose and discuss the pattern of leave they wish to take with their individual employers. A parent’s chosen proportion of leave can be taken in small blocks of no less than 1 week or all in one go if their employer agrees.

P Statutory shared parental pay will be available to whichever parent has chosen to take parental leave (as long as the mother would be entitled to statutory maternity pay (“SMP”) had she taken leave) and will be paid at the same rate as SMP.

P Employees on shared parental leave will enjoy similar protection to that given to women on maternity leave.

P Ordinary paternity leave will still be available, although it cannot be taken by an employee who takes shared parental leave. Additional paternity leave and additional statutory paternity pay will be abolished.

Although referred to as ‘Shared Parental Leave,’ the new scheme is not to be confused with the current parental leave entitlement, which gives parents a statutory right of up to 18 weeks of unpaid leave for the purpose of caring for their child. This will run alongside the CFB changes.

3. Time Off to Attend Ante-Natal Appointments Although an implementation date for Part 7 of the CFB has not yet been finalised, this section will allow eligible employees and agency workers to take unpaid time off work to attend up to 2 anti-natal appointments (of up to 6½ hours each) to accompany their pregnant partner or to accompany the primary adopter in an adoption meeting.

Summary The first change likely to take effect is the widening of flexible working requests. In readiness, employers should ensure their current HR procedures are compliant with the principles set out in the ACAS draft Code of Practice.

maternity, pregnancy & redundancy

THE VEXED ISSUE:

In 2013, pregnant women are still being disadvantaged in the workplace. This is the view of the Equality and Human Rights Commission, which on the back of this concern will be undertaking a comprehensive research project into the scale of pregnancy and maternity discrimination in the workplace. The purpose of the research will enable both the Commission and the Government to shape an appropriate response.

Many employers fear this is a preamble to more legislation for a group of workers already more than adequately protected whilst pregnant or on maternity leave.

One vexed area for employers is redundancy. Many employers consider that while on maternity leave an employee cannot be made redundant or it is just too risky. It is not however unlawful to make an employee on maternity leave redundant. Any legal risks can be managed if the employee is treated in a fair and non-discriminatory manner. The key considerations when faced with a redundancy

maternity leave scenario are as follows g

It is not unlawful to make an employee on maternity leave redundant. Any legal risks can be managed if the employee is treated in a fair and non-discriminatory manner.

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maternity, pregnancy & redundancy

objective as possible and there should be an audit trail to justify the scores – there can then be no argument that selection was pregnancy or maternity leave related. Non-attendance for pregnancy or maternity reasons must not be taken into account if attendance is one of the selection criteria.

• Look for redeployment opportunities and do not forget that there is a preferential right. If a redundancy situation arises during maternity leave the employee is entitled to be offered any suitable alternative employment that exists ahead of other employees. If the vacancy exists and it is not offered to the employee, the dismissal for redundancy will be automatically unfair and may give rise to a claim for pregnancy or maternity discrimination.

• Provide a right of appeal.

Ensure that the correct payments are made:

• Provided the employee has two years’ service, she will be entitled to have a redundancy

Ensure that there is a genuine business reason for making the role redundant. Selection for a reason relating to pregnancy, the birth or maternity leave will render any dismissal automatically unfair and will amount to pregnancy or maternity discrimination.

A fair procedure should be followed:

• Even though the employee is absent ensure that she is consulted with about the possible redundancy situation. You do no need to wait until she returns to work.

• Ensure selection is fair and non-discriminatory. If there needs to be a pool for selection, the same selection criteria should apply to everyone equally in the pool; there is no reason why the woman on maternity leave should be excluded from the pool. Selection is however a high risk area as this is when an employee may argue that she has been selected because she is on maternity leave. The selection criteria should be as

payment calculated in the same way as for any other employee.

• Notice pay will also be due; this will need to be paid at the full pay rate if the notice period is equivalent to the statutory notice period or is no more than one week longer.

• Statutory maternity pay will still need to be paid. Even though the employment may have ended, SMP will be payable for the remainder of the maternity pay period.

With further legal changes to support working families due over the coming months and this latest piece of research suggesting in the long term there may be more legislation on the way, it easy to see why some employers are expressing the view that the rights have gone too far; redundancy is however one area where with careful management employers can still act in the best interests of the business even when dealing with a pregnant employee or a woman on maternity leave.

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ZERO HOURS CONTRACTSWe felt it essential to cover this topic in this newsletter given the (mostly adverse) media attention that this type of contract has recently received. Figures vary as to numbers engaged on such contracts, but it is clear that there is increasing pressure on companies to cease using them - an example of the outcome of this pressure is Allied Healthcare's announcement in November 2013 that it is offering 15,000 staff on zero hours contracts, contracted hours.

Although there is no consensus as to the numbers of individuals engaged on zero hours contracts, there is statistical evidence that more women than men seek part-time work to meet caring commitments and are therefore more likely to be engaged on such contracts. This could leave organisations using zero hours contracts open to discrimination claims.

But what is meant by zero hours contracts and why might it be a beneficial or disadvantageous to businesses to operate such contracts?

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There is no legal definition of the somewhat negative term “zero hours contracts” but it is generally a description for contracts where an employer does not guarantee to provide a worker with any work and only pays for work actually carried out.

Zero hours contracts can be used to describe an employment or casual work relationship. Whether an individual is an employee or a casual worker will usually depend on the facts, rather than the content of the written contract, in each case. A word of caution; even if a contract states that an individual is a casual worker, a Court or Tribunal could find that they are in fact an employee. Employees have more legal rights than workers.

Zero hours contracts can provide flexibility. It is generally thought that employers benefit most from this flexibility; they can enable an organisation to reduce its workforce during quiet times without making redundancies and increase it during busy times without a significant recruitment drive. However, it is also possible for workers who do not want (for many different reasons) to work full time or all year to benefit from this flexibility. There is also an indirect benefit to workers who may receive a higher rate of pay if an employer does not have to pay redundancy/recruitment costs on a frequent basis.

Employers should be aware of the risk of discrimination when operating zero-hours contracts.

In particular, there is the possibility of workers bringing a claim for less favourable treatment on the basis that part-time workers have comparatively fewer benefits or lower pay than full-time workers. Alternatively, they could bring a claim for indirect sex discrimination. As mentioned above, it appears that more women than men have childcare commitments and prefer to work part time. If, for example, a company offers their (predominantly female) part-time staff zero hours contracts with fewer benefits than an employee on a permanent contract would have, they risk such a claim. The company would need to justify its reasons for offering such contracts.

Additionally, some zero hours contracts require workers to be available at all times, even if they are not scheduled to work. It is likely to be more difficult for women with caring responsibilities to be able to come into work on very short notice, so such a requirement could disadvantage them; this is another reason why they may seek to bring a sex discrimination claim.

Holiday entitlement is another key area to take into consideration before offering a zero-hours contract. All workers are entitled to 5.6 weeks’ annual leave. If less than full-time hours are worked, then the amount of leave they are entitled to is reduced proportionally. However, calculating such holiday entitlement can be an administratively burdensome task, particularly when taking into account that a worker should actually be able to take this holiday, not simply receive payment for it. Some employers choose to “roll up” holiday pay and pay it at the end of the year or end of the contract, but this is not permitted under the current law.

DEFINITION

DISCRIMINATION

Benefits of zero hours contracts

HOLIDAYS

Risks of zero hours contracts

The future use of zero hours contracts is in doubt with BIS having announced an intention to launch a consultation on this issue. One of the key areas of concern is the use of exclusivity clauses i.e. where a worker is required not to work anywhere else even if the company does not offer him/her any hours. It may be that the eventual result of this consultation will be a tipping of the balance of flexibility away from the employer towards greater rights to the employee.

Whilst discrimination claims are a current risk when using zero hours contracts, for some employers a loss to their profit margin due to the inability to operate flexibly and efficiently could be a greater risk if the use of zero hours contracts is substantially curtailed in the future.

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CASE STUDYPREGNANCY ISSUES

10 Firstly, no employee has a duty to disclose that they are pregnant at interview. Although it is likely to be highly inconvenient for the business to recruit again to cover her maternity leave after such a short time span, the law protects pregnant employees against discrimination. Therefore if she had disclosed this fact at interview and then you did not select her, you could have a discrimination claim on your hands.

Similarly, although this employee has not yet obtained sufficient service to bring an unfair dismissal claim, you could be facing a discrimination claim if you dismiss her or discipline her without good cause at this time. Consider the reasons for

Question: I employed a female sales person six weeks ago and it now transpires that she is pregnant and she must have been pregnant at the time she had the interview, although disappointingly she did not disclose this. Her performance has never been satisfactory but now she is also taking additional days off sick. What can I do about this?

her sickness absence – if these are pregnancy related then you should not take any action in relation to these. However, if they are not related to her pregnancy you could start managing her absence, so long as you would do the same for any other employee.

The best way to tackle any performance issues is to set clear targets and have regular review meetings. As she has a sales role, you should be able to set clear targets that are comparable with targets set for employees in other sales roles in your business. However, if the employee states that her failure to meet targets is due to her pregnancy, you would still run the risk of a discrimination claim if she is issued with a disciplinary sanction. As the employee should be given sufficient opportunities to improve her performance, by the time targets have been set, reviewed and reset, realistically the employee may be on maternity leave. The best solution may therefore be to simply let her know what is expected of her and encourage her to perform, whilst letting her know that you will support her during her pregnancy.

If this is unsuccessful, issues are probably best dealt with on her return from maternity leave – a return which you may well be hoping does not occur!

UPCOMING SEMINAR

DATE: THURSDAY 27.02.14 TIME: 8:30 - 10:00AMLOCATION: FG SOLICITORS, 2 DEANERY COURT, GRANGE FARM, PRESTON DEANERY, NORTHAMPTON NN7 2DT

Facebook, Twitter, LinkedIn and other social media networking sites are used every day across the world and have become a useful marketing and brand awareness tool. The downside is that if misused by employees, employers can be exposed to serious legal, commercial and financial risks.

If you wish to explore strategies to minimise the risks to your business, join us to:

} identify the risks } learn how to minimise those risks

} consider the importance of clear policies } learn how to avoid costly tribunal claims

} look at how to deal with social media disciplinary related issues To avoid disappointment reserve your place by email: fgmedia@floydgraham.co.uk.We look forward to welcoming you to our next seminar.

“Managing social media in the workplace - Are you keeping pace?”

EXCLUSIVE TO MEMBERS OF

NORTHAMPTONSHIRE CHAMBER

OF COMMERCE & BRACKMILLS

INDUSTRIAL ESTATE BUSINESS

IMPROVEMENT DISTRICT

legislation timetable

TUPE 2006 Reform The Government’s response indicates that new provisions will include: change of location constituting an “ETO” reason; lengthening the timeframe for the obligation to provide employee liability information; and allowing micro-businesses to inform and consult with employees directly. There will be no repeal of the provisions relating to service provision change as originally proposed.

Zero Hours Contracts A Private Member’s Bill that aims to prohibit the use of zero hours employment contracts has been presented to Parliament. The Bill is due to have its second reading in January 2014.

Mandatory Pre-Claim ACAS ConciliationA duty on the parties and ACAS to attempt pre-claim conciliation involving a four-stage procedure for early conciliation, which must be attempted before a claim can be pursued.

Discrimination Questionnaires Statutory discrimination questionnaires are set to be abolished.

Financial Penalties The imposition of financial penalties to be paid into a Consolidation Fund by losing employers in a tribunal case.

Flexible WorkingThe Government has announced its decision to proceed with the extension of the right to request flexible working to all employees. A statutory code will be issued to give guidance as to how this will work in practice, to be supported by an ACAS good practice guide.

Equal Pay The Government are set to introduce regulations giving employment tribunals the power to order an employer to carry out an equal pay audit where it is found to have breached equal pay law.

Health and Safety at WorkA review of the current health and safety legislation has been carried out at the Government’s request. The Government has confirmed it will implement the key recommendations to include a consolidation of health and safety legislation and the deregulation of most self-employed people.

Sickness Absence ManagementA new approach to sickness absence management will be introduced.

Shared Parental Leave Parents will be able to share the statutory leave and pay that is currently available to mothers.

JANUARY 2014

24 JANUARY 2014

6 APRIL 2014

6 APRIL 2014

spring 2014

SPRING 2014

OCTOBER 2014

END OF 2014

2014

2015

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S O L I C I T O R SLawyers for today’s employers

Floyd Graham & Co Solicitors is to become FG Solicitors. Why the change? Six years on and the Firm has gone from strength to strength. The change is in recognition of the collection of skills, knowledge, expertise and quality of service that Floyd and the Team bring to its’ clients.

Our Philosophy & Mission remains:-

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