A stitch in time for the Olympics .

If you are preparing for the effect of the Olympics at work, it is easy to focus on homeworking and travel arrangements.  But what about the people who are working?

Some will really want to see some special events on TV.  And some will need to work longer hours to cover colleagues who have needed to change their arrangements.

Taking a few moments to make things clear will save  arguments later.

TV at work

• Are you going to provide TV viewing in the workplace?
• If so, make sure you have a TV licence
• Who’s in charge of channel choices?
  • Don’t let dominant individuals bully their colleagues

Talking about the games/events

Not everyone will be supporting Team GB.  If your staff support other teams, they are entitled to do so and everyone should know that.  Don’t let sporting enthusiasm turn into racist or sexist abuse.  Your Equality and Harassment policy applies as much to discussions at work about the ladies basketball or the male gymnasts as it does to any other subject.

Time off during the day to watch events

Are staff breaks going to be reorganised so they can watch specific events?  If they have longer breaks than usual, is there going to be a record of time owed to be worked later, or are you just writing it off?   Who is going to keep the record, and how?   What if there are disputes?    If there are going to be extra hours working to compensate for longer breaks, how is this going to be organised?

Longer hours working

For some people the games are going to mean longer hours at work, either to cover colleagues, or because extra traffic means work takes longer (delivery drivers would be just one example, but anyone who travels – particularly in Greater London – is likely to be inconvenienced).   Are you going to pay them overtime?  If so, at what rate?  Or are you ‘banking’ the extra time so they can work shorter hours later?  Or are you going to rely on the “additional hours as necessary to fulfil the requirements of the job” clause in your contract (assuming you have that).  Who is recording the time and how?   Workers who are not ‘opted out’ for Working Time Regulations can work up to an average of 48 hours a week.  This means they can exceed 48 hours in any given week provided they still get their statutory breaks, and that their longer hours are not dangerous.

. . . saves nine.

Whatever you plan to do, it is definitely worth having a plan.  Even if you have to adjust your ideas when we see what is actually happening to transport and so on, you’ll be much happier if you have contingency plans in place, and your workers will be happier if they know in advance what to expect at work – even if we’re all not quite sure what to expect on the roads!

Check out our homeworking application and agreement – it is suitable for Olympic homeworking and is easily adaptable to your situation.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060 Website:  www.irenicon.co.uk

Every worker in the UK is entitled to statutory minimum paid holiday?

When the Working Time Regulations were first introduced in 1998 they created a legal right to a minimum amount of paid leave.   At that time there was a three month’s qualifying threshold. Later the three months threshold was removed and the basic holiday increased.

The threshold still lives on in the organisational memory – we still see contracts today that say you don’t get any leave during the first 3 months (or some other period) of employment. Whilst employers can prevent staff from taking leave during this period, they cannot prevent at least statutory leave from accruing.

So anyone on a short term contract of employment is accruing statutory leave whatever the contract says and should be able to take the paid leave during their employment or paid for any unused leave when they leave.

For more information on holidays

Tel: 08452 303050 e-mail: info@irenicon.co.uk
twitter: annabelkaye
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via Annabel Kaye’s blog at Ecademy http://www.ecademy.com/node.php?id=176767 by Annabel Kaye

Tombstones and monuments

References and how to give them

Have you ever received a lengthy questionnaire about an ex-employee seeking all sorts of details, from their sickness record to a detailed analysis of their performance record?

For a smaller business, finding this information about ex-employees and putting it together in a reliable and accurate form can take hours.

Did you know there is no general legal obligation on employers to give references to anyone?

But before you get too excited and decide to throw all those reference requests in the bin, here are some top tips on references and how to organise when to give them and how.

1. Have a consistent and published (to your staff) policy on giving references.
2. Tombstone” references.  If you are not going to give anyone a reference beyond confirmation of start date, finish date and job title, make sure everyone who comes to work for you knows that.
3. Stick to your policy – do not single some people out for special (worse) treatment.  This is vital if your ex-employee:
   a. has made an equality-related grievance (victimisation)
   b. has taken an equality-related tribunal claim (victimisation)
   c. belongs to a group that might give them a basis for asserting that members of their group tend to get worse references from you
   d. sometimes as part of a compromise agreement you may find that you have to agree a reference in a particular form which does not match your usual policy, but avoid that if possible.  Better to use your policy to frame the type of reference that you are willing to give in the compromise.
4. You are liable for factual references you give.  If the new employer relies on them and suffers harm as a result, you could owe compensation – so never lie in a reference
5. You are liable if you defame an ex-employee in a reference – so false bad references can be a problem for you too
6. If you want to go beyond a tombstone  reference and move towards a longer format (perhaps a monument to their achievements) make sure your opinions are supported by facts
7. Never disclose personal data about a named individual without their consent so:
   a. Have a policy on references that includes a statement about when you will respond to requests
   b. Ensure your managers comply with that policy and do not brief ‘off the record’
   c. Only disclose ‘sensitive data’ about health, religion, politics with the express consent of the individual for the purpose for which you are disclosing it
   d. Ensure sensitive data is securely transmitted – never in open post or open email.
8. You can usually limit your liability when giving a reference by using a suitable disclaimer.  So it’s useful to make it a part of your reference policy that a legal disclaimer will always be made on your references (and to follow your own policy!).

You don’t have to fill in other people’s forms – you can provide the references you feel are appropriate in the format you want.  It is very rare that you are actually under a legal obligation to provide a reference – if someone suggests that you are obliged to respond, ask for the specific statutory reference that establishes the obligation … and do check that it does have that effect!

Almost always, you don’t have to give a reference if you don’t want to, and you don’t have to spend hours of your time on it.  But, remember that you will also be requesting references yourself some day.

And by the way, references are an extremely unreliable way of confirming an individual’s suitability for a role, since most referees won’t know what your role requires, and you won’t know how their old role was structured.  It is so easy to recruit someone with a glowing reference who turns out to be useless.  Often the information in references (other than start and finish date) is worse than useless – but sometimes taking up a reference can show up that your candidate is being less than truthful, which is valuable information before you take someone on.  So on balance, it’s probably still worth asking for references and reviewing them carefully – just don’t expect them to do too much for you.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060 Website:  www.irenicon.co.uk

Anti-social media and business

What started as a great way to chat to your mates (and waste time at work) has turned into a multi million dollar industry used by businesses to promote their brands.

The drunken college photos and tactless remarks published in the heat of the moment come back to bite . . . and suddenly people are saying “It’s private” about things they published to millions of people.   Today people are talking about copyright, advertising codes and list ownership . . . and the old idea that somehow “cyberspace” or ‘social  media’ was outside the legal channel is beginning to fade.

facebook (Photo credit: sitmonkeysupreme)

It’s just like when pop festivals went from being free to paid.  The front line hippies move on to something else, and business moves in and turns the festival into something profitable, structured (and sometimes with better loos).   Years later, the same thing happened with raves.  Though your mates might not remember what you did at Glastonbury or the local rave, the problem with social media is that there’s a record that everyone can see years later.

Your rant about the guy/girl who dumped you reads like a sexist polemic from a trainee stalker . . . and here you are applying for a role in a front line equal opportunity employer’s PR team – and there’s your rant still drifting about, fatally undermining your pitch for the dream job (now) that you had no idea you would ever be interested in (then).

Social media is growing up.  It is still dynamic, exciting and fascinating to use for business and personal communication.   But now a whole set of legal rules are being applied.   From copyright, to slander, to harassment – the real world and the virtual world increasingly coincide and collide.

Business needs social media, and people who know how to use it.   It is too late for corporates to ban social media in the workplace or from corporate communications.  Even if you were to try to do this, or block access from company systems, people have it on their mobiles.  In Irenicon, we use social media – from Twitter, to Facebook to Googleplus and WordPress to promote our business and reach out to people who might want to work with us and think with us about the issues that count in the workplace.  How could we ban that?

What we need are social media policies that help people realise the effect they are having, but allow them to do their job which will increasingly involve using it.  We need bosses to understand the risks of social media and how to manage them.

Annabel Kaye is giving a series of talks on the legal side of social media – you can join her:

•  in London on 24 May – book via this link
• via a free KoffeeKlatch teleseminar on 12 June – book via this link
• in Margate on 22 June – book via 1230twc link

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Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060 Website:  www.irenicon.co.uk
You can follow Annabel on Twitter

TUPE and the Big Society

Charities who are tendering to provide services that are currently provided by local authority, civil service or quangos find themselves caught in the TUPE regulations, which apply where a change of service provider is taking place.

TUPE has the effect of putting the new employer in the legal situation they would have been in if they had employed the transferring staff from the day they started with their original employer (the transferor).  Outstanding liabilities under the contract will transfer through to the new employer – anything from accrued holiday, to back pay, equal pay claims as well as unfair dismissals relating to the transfer.

Government itself has created an additional problem for charities by agreeing with unions a set of protocols that go beyond the basic legal provisions of TUPE.   For example, under TUPE there is no obligation on an employer to create a final salary pension scheme, or to honour discretionary termination payments.  But the Cabinet Office Statement of Practice concerning Staff Transfers in the Public Sector sets out “there should be appropriate arrangements to protect occupational pensions, redundancy and severance terms of staff in all these types of transfer”.  Whilst this guidance has been revoked for local authorities, it has not been revoked for all of the public sector. 

There is a significant difference between the redundancy entitlements of ordinary employees and civil servants.   An ordinary worker is entitled to statutory redundancy pay at a maximum allowable weekly pay of £430 whereas the civil service redundancy scheme has no limit and even has a minimum.  Statutory redundancy is calculated on age related multipliers of a week (or a week and a half, or half week depending on the age of the worker) whereas the Civil service scheme is calculated with multipliers of months at full pay.

Whilst charities do not always pay their existing employees at the statutory basics when it comes to contractual benefits, few charities are well enough funded to have staff on the same terms as civil servants.  

For example:

	Statutory entitlement	Typical local government/civil service
Holiday	5.6 weeks including bank holiday	6.6 weeks including bank holiday
Sick pay	SSP only	6 months full pay, 6 months half pay
Redundancy	Statutory only maximum allowable weekly pay £430 Years of service multiplied by weeks (or 1.5 weeks or 0.5 weeks, age dependant)	No maximum weekly pay (minimums apply) Years of service multiplied by months
Pensions	Stakeholder/NEST	Final salary

 Charities who are receiving staff via TUPE transfers find themselves paying higher benefits than they normally pay, with much higher termination payments if they cannot afford to keep the staff on.  Charitable funding tends to be quite short term, often project by project, or year by year at best.  Such higher benefits and termination payments can risk the viability of the Charity itself if they are not foreseen and budgeted for.

Charities who intend the service to be provided by volunteers may be able to work around the TUPE problem if their existing delivery model is long standing and pre dates the transfer.  The situation is changing, but it is still a high risk scenario for many Charities to simply ‘pitch’ to provide services that are currently provided by salaried staff.

My experience of working with social enterprises and charities and helping them plan TUPE transfers is that much of the advice they are given encourages them to take on obligations beyond the ones they are obliged to in law (or even by the government’s own standards) and leaves them very vulnerable if there are changes in funding at a later stage.   A well planned tender to outsource work needs to properly evaluate the TUPE situation and prepare for it. 

Christopher Head is qualified as a barrister.  He edited Harvey on Industrial Relations and Employment Law and is currently a director of Irenicon Ltd a specialist employment law team.  To join the conversation about TUPE you can join our free KoffeeKlatch teleseminar on TUPE by registering via http://koffeeklatch.co.uk/category/tupe/

Time to get people to help in your business?

When you start your business there is just you and your idea.

 Before you know it you need people to help you.  Whether it is your family volunteering to help out, interns, apprentices, volunteers, freelancer or staff, your business’s size is affected as much by how you manage these relationships as it is by your customer and service focus.

Don’t be fooled into thinking only employees have rights at work and you can just abolish all your troubles if you call everyone an intern of a freelancer.

Suppose you employed 9 people on a freelance basis for five years?  Only paid them when you wanted them, no holiday worries, no employment law?

Suppose one took you to tribunal and claimed to be your employee (and claimed unfair dismissal when you stopped using them).

Suppose they won (tribunals look beyond the label into the real relationship).

Suppose HMRC decided you ought to be paying the back PAYE on all these ‘freelancers’.

Could you find the money to sort it all out?  This time they wanted £12,500.

 It happens, this is real. 

 Don’t be scared.  Don’t ignore it.  Handle it. 

 The best way to handle this in advance.

 For a free MP3 of Annabels entertaining talk on this subject click

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060 Website:  www.irenicon.co.uk
You can follow Annabel on Twitter

TUPE or not TUPE

The TUPE regulations [the Transfer of Undertakings (Protection of Employment) Regulations 2006] cover a range of scenarios –   from mergers to ‘service provision changes’ – which occur when the work being done by an ‘organised grouping’ of employees (which can be just one person) is moved to another organisation.

A fortune has been spent on legal fees arguing about when moving a piece of work from one provider to another is a “service provision change”, and so is, or is not, covered by TUPE.   You can see in the case reports the desperation of legal advisors and HR teams who simply failed to realise early enough that the Regulations applied to their circumstances. 

Whilst there have been some useful cases about what happens when the work is entirely dispersed across a wide range of organisations (no TUPE), the majority of contracting-out exercises (and  contracting-back-in,  and change-of-service-provider  exercises) are covered by the TUPE regulations and are likely to remain so for a while.

TUPE is a bit of a melting pot for HR and employment lawyers, since it is also part of the commercial contracting and purchasing (or sales) side of the organisation, and the thinking of those functions does not always incorporate what HR need to do to make the process work.

 In simplistic terms, an organisation considers outsourcing when the function/individuals:

• are too expensive to retain in house for the benefit they deliver;
• are isolated experts on specialist subjects for whom the organisation can offer no ongoing professional development or support;
• are  not delivering the right performance against budget;
• where an external body has made a policy decision this should be so

Whatever the reason for deciding, the end effect of TUPE is as profound in psychological terms as it is legally.

Think about it this way.  Imagine you woke up this morning with a complete stranger beside you, only to find out that the law regarded you as having been married to each other for years.  Not only that, everything the other person did with regard to your household legal affairs is something that is binding on you.  So if your new (but in law, longstanding) partner ran up a major credit card bill before you met them, you are required to pay the bill.   That is how it is for an employer who has just TUPEd in a team.

And how about being the person transferred.  Suddenly you are ‘in bed’ with a complete stranger (or worse someone you know well and positively decided never to date, never mind marry).    You are being passed around in a crazy wife-swopping party and you didn’t ask to go to the party.

No wonder people go into denial and say – this can’t be happening to me.   But TUPE is real, and it does have this effect.    You can see why people spend a fortune litigating and saying “this can’t be applicable to me”.  

If you want to join our free KoffeeKlatch seminar to talk about TUPE register via http://koffeeklatch.co.uk/category/tupe/

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060 Website:  www.irenicon.co.uk
You can follow Annabel on Twitter