(There will be an additional bank holiday on Tuesday 5 June 2012 to celebrate the Queen’s Diamond Jubilee and the usual late May bank holiday is being moved to Monday 4 June.)

“While many employees may assume that they will have the right to take the bank holiday off work for the Queen’s Diamond Jubilee, there is no statutory right for employees to take bank holidays as leave, and not all employees will be entitled to take the extra day off work. An employee’s entitlement will depend on the wording of their employment contract. You should review the wording of your employees’ contracts to establish whether or not they are entitled to take the Diamond Jubilee bank holiday as leave.

“If a contract states a specified number of days of annual leave “plus bank holidays”, the employee will be entitled to take the Diamond Jubilee bank holiday as leave and the bank holiday will constitute an additional day’s entitlement in 2012. Where the contract specifies a number of days of annual leave for example “including bank holidays”, the employee will be entitled to take the bank holiday as leave, but the day can be deducted from his or her annual leave entitlement.

“Where the contract specifies the number of bank holidays that the employee is entitled to take as leave; “the usual bank holidays” or “eight bank holidays” or where it lists the usual bank holidays by date or name, there is no entitlement to take the Diamond Jubilee bank holiday as leave, since it is not one of the usual or eight bank holidays.”

What happens if I require my employees to take the additional bank holiday as part of their annual leave?

“Where employees do not have the contractual right to take the Diamond Jubilee bank holiday as an additional day of leave and you decide to close your office on 5th June anyway, you will usually be able to enforce that your employees take the day (or indeed any other day) as annual leave, provided that you give them proper notice by specifying the day (or days) on which they must take the leave and give them notice of the leave that is at least twice the length of the leave that they are required to take.

“Alternatively, you could, as a gesture of goodwill, grant all employees an additional day of leave and not deduct this from their annual holiday entitlement.”

 Do I have to pay my employees time and a half or double pay on a Bank Holiday?

“If your workplace is to remain open during the Diamond Jubilee bank holiday, you should check the wording of your employment contracts that relate to the rate of pay to which employees will be entitled.

“There is no statutory right for employees to receive a higher rate of pay on a bank holiday. Therefore, in the absence of a contractual provision to the contrary, employees will be entitled to receive their usual salary for the Diamond Jubilee bank holiday. Where employees usually receive a higher rate of pay or are contractually entitled to a higher rate of pay as stated in their contracts of employment on a bank holiday, you will be expected to honour this in respect of the Diamond Jubilee bank holiday.”

What happens for part-time employees?

“You will need to consider the rights of part-time employees in relation to the Diamond Jubilee bank holiday. If bank holidays are calculated pro rata for part-time employees (which avoids less favourable treatment), then you will need to take into account the extra day’s bank holiday in the 2012 pro rata calculations.”

The changes to the Bank Holidays are going to create a three-day working week and this is going to cause problems to my business. What should I do?

“If your employees are granted the additional day off (either through your choice or because the wording in their contracts allows them to do so) you will need to ensure that your business’ needs are met during this time. In some sectors, it is likely that staff will be required to work over the Diamond Jubilee bank holiday.

“However, you should be mindful that this may be particularly difficult for some employees with children, given that schools will be closed over the bank holiday period. As a result, there may be a high demand from employees with children to be able to take the bank holiday off work and you will need to determine how the business will manage competing requests.

“Start planning how you intend to manage the Diamond Jubilee bank holiday now. Firstly check the contractual entitlements of staff in respect of leave for the additional bank holiday (see above) and consider your business needs and potential staffing levels well in advance of June.

“Those employers that do not allow staff to take the additional bank holiday may find that they experience higher than usual levels of unauthorised absence and reported sickness absence. You should make clear to staff how you intend to manage absenteeism over the Diamond Jubilee period including letting them know that absence will be monitored and that employees will be expected to account for their absences. This should act as a deterrent to some employees who are considering taking unauthorised absence or reporting absence as sick leave when this is not genuine.

“Finally, you should clearly communicate with your employees spelling out their entitlements in respect of the Diamond Jubilee bank holiday, and the arrangements that you will be putting in place regarding cover. Careful planning and good communication is likely to reduce the risk of absenteeism and other issues arising around the time of the celebrations.”

1. Notification

Employees who become pregnant must provide the employer with notification of their pregnancy no later than the 15th week before the expected week of childbirth (EWC). This must confirm they are pregnant, the EWC and the date on which the employee wishes to start maternity leave.  This can be done simply using the MATB1 form the mother will be issued with by her doctor/midwife and a maternity notification form to capture the relevant dates.  The employer must respond to this notification within 28 days confirming the date on which the 52 weeks maternity leave will end and what maternity pay the employee is entitled to. If the employee wishes to change the date on which maternity leave is to start they must give 28 days’ notice to the employer.

2. Health and safety

There are specific provisions in place to protect employees who become pregnant. As soon as you are aware that an employee is pregnant you are under a duty to take all necessary and reasonable steps to remove her from any source of harm towards her or her unborn child. A simple risk assessment for pregnant employees is the best tool to use to determine areas of risk and associated actions to be taken; this may include finding some temporary work for her or indeed if the risk is so severe to suspend her from work with pay for the remainder of her pregnancy.  Employers are also under a duty to provide suitable rest facilities for pregnant and breast feeding employees and for those employee who have given birth in the last six months.

3. Time off for antenatal appointments

Employees are entitled to reasonable paid time off for such appointments.  Ideally the same rules should apply as with any other medical appointment – appointments made for the beginning or end of the working day where possible to avoid disruption to the business.  Evidence of the appointments must be produced on request.

4. Maternity leave

Maternity leave is made up of 26 weeks ordinary leave followed by 26 weeks additional leave.  The first two weeks of maternity leave is referred to as compulsory maternity leave. The employee will commence her leave in accordance with the notification form submitted to the employer. Maternity leave cannot start earlier than the 11th week before the EWC.  If the employee is absent from work for a pregnancy related illness up to four weeks before the EWC then maternity leave will be triggered.  Maternity leave will start automatically in cases where the baby is born earlier than expected.

5. Contact during maternity leave

During maternity leave (with the exception of the first two weeks after the birth) an employee can, if they wish, attend work for up to 10 days without bringing her maternity leave to an end. These are referred to as “keeping in touch” days and the intention is to enable the employee to do just that. The 10 days can be used to conduct normal tasks, to attend meetings or training for example.  Remember also to notify the employee of any vacancies that may arise in the business giving her the opportunity to apply.

6. Notification of return to work

Eight weeks before the employee’s return date, the employer should write to her confirming her planned return date and enquiring as to her intention to take parental leave or annual leave at the end of her maternity leave. An employee who wishes to return to work earlier than the date specified in the notification form must give the employer eight weeks’ notice.

7. Transfer of maternity leave

Mothers of children born on or after 3 April 2011 are entitled to transfer between two and 26 weeks’ leave to the father of the child / their partner. The earliest this can commence is 20 weeks after the date of birth and it must end no later than 12 months after the date of birth.  The minimum period of additional paternity leave is two consecutive weeks and the maximum is 26 weeks.

8. Returning to work

An employee cannot return to work within the two week period following the date of birth (compulsory maternity leave). Where an employee returns to work after a period of ordinary maternity leave they are entitled to return to the same job they occupied prior to their maternity leave.  Where an employee returns to work after a period of additional maternity leave they are entitled to return to the same job they occupied prior to their maternity leave, unless is it not reasonably practicable for her to do so. In that case she should return to another role which is both suitable and appropriate in the circumstances. She must return to terms and conditions that are no less favourable than those that would have applied had she not been absent on maternity leave. On return to work ensure the employee is given a full handover of work and relevant training.  The employer must also conduct a further risk assessment and make all reasonable adjustments for the new mother.

9. Requesting to work part time

An employee has the right to request to return to work on a part time basis and this should be done in reference to the company’s flexible working policy. Whilst employees do not have the right to work part time after maternity leave, refusal of a request to return to work part time after maternity leave may amount to indirect sex discrimination – so take a positive view and appreciate the benefits such arrangements can bring to the business.

10. When things go wrong

Should the pregnancy go wrong at any stage this will be an incredibly difficult time for the employee and her family so must be dealt with compassionately, with patience and understanding.  It is important to note that an employee who suffers a miscarriage after 24 weeks of pregnancy retains her rights to maternity leave and pay (if she qualifies for this).

Other specific rules apply for night workers and agency workers etc and are not covered in this document.

The importance of having relevant restrictive covenants in contracts
An employee resigned and moved to a rival company when his ex-employer attempted to seek an interim injunction to prevent him from disclosing confidential information gained during his previous employment. The ex-employer also sought an order to bar him from working for the rival company at all. The ex-employee’s contract did have a confidentiality clause but no restrictive covenants preventing him from working with any competitors. In relation to the request for an injunction, the Court of Appeal found that he was unlikely to cause any harm to the ex-employer therefore the request was rejected.

Moving down the road amounts to constructive dismissal
The EAT has found that a change in work location when a business transfers can amount to constructive dismissal.  In this case, London bus drivers were transferred to the new depot six miles away. They resigned claiming the extra one to two hours travelling time was unreasonable. This was found to be a substantial and detrimental change in their working conditions which was automatically unfair under TUPE.

‘Stats Corner’

*The rise in the limits applies where the event that gives rise to the award or payment occurs on or after 1 February 2012.

“There are a few different issues here. Firstly, let’s look at managing requests for leave. You may find that a lot of staff want the same time off when major events/ceremonies are taking place. As an employer, you need to balance competing requests in a fair way as well as ensuring that the business is properly managed. Managing staff expectations is also important, to ensure that the business does not suffer disruption arising from disappointed staff.

“Most well-drafted contracts of employment permit employers to decide when holiday is taken and entitle them to refuse holiday requests where there is a business need. Given that you’ve already anticipated a potential problem with the Olympics, it would be sensible to decide how you will ration holiday among your staff. It could be on first come, first-served basis, picking names out of a hat or by another means.

“Whatever approach is adopted, it needs to be non-discriminatory and unlikely to create a sense of unfairness. You also need to ensure there is a clear, well-publicised approach to taking holiday over the period. For example, you might inform staff that if they wish to take holiday during the period of the Olympics they will need to submit their application by a certain date, explaining what will happen where there is a clash of applications.

“You need to write to staff now. To summarise, explain the need for adequate cover and tell your staff there will be no automatic right to take holiday during the holding of the Olympics as well as explaining how you will select between competing applications. Employers that get off the starting block promptly in terms of their preparation for the Games are likely to have successful outcomes in terms of minimising staff dissatisfaction.”

How would we manage an employee if we suspect they are calling in sick to attend events?

“Employees may be genuinely ill during the period and although the circumstances may seem suspicious, the employer cannot take disciplinary action on the basis of purely circumstantial evidence. A proper investigation needs be carried out before the employer can conclude whether the employee was genuinely ill or simply ‘pulling a sicky’ to watch their favourite athlete. It would therefore be advisable to communicate to all employees that all sickness during the Olympic Games will be investigated and will require a medical certificate.”

Do we have to let employees watch the Olympic Games at work?

“The company is under no obligation to allow employees to watch the Games at work. The business may decide to show some of the coverage in the canteen at lunch time or allow employees to listen to coverage on the radio, but this is the company’s choice. There are considerations that should be taken into account, however, including boosting staff morale, whether the company holds the relevant TV/ radio licence required, whether this will impact service continuity, how distractions will affect productivity etc. so that showing the coverage does not impact the company’s output.

“Events will be taking place all day, every day and broadcasters such as the BBC will be providing updates on the internet with live streaming and highlights. It is possible that company computer systems may be slowed down as a result of employees watching the Games via the internet which is another consideration. Employers should ensure that their IT policy is up-to-date and clear as to the limits of personal use of the internet. Staff should be reminded of the IT policy prior to the Games, so they are fully aware that breaching the policy may lead to disciplinary action being taken.”

How can we keep the office excitement and possible de-motivation to a minimum?

“Whilst the excitement about the Games may lead to increased motivation, it may also cause a distraction. In order to minimise this, within the company’s communications, employees should be reminded that they will be required to maintain a professional standard of service at all times.”

There may be severe travel disruption especially in London. What should we do?

“For the duration of the Games, it would be advisable where possible to avoid the hot spots including London, parts of Essex, Wimbledon, Wembley and Old Trafford in Manchester. Businesses would be advised to relocate meetings away from these city venues, perhaps encouraging meetings via Skype. With regards to employees whose offices are based in these hotspots, the company could consider moving staff to other temporary offices for the duration of the Games as long as their contracts of employment are written to allow the business to vary an employee’s location. If unsure, please check with your HR advisor.

“Alternatively, a business could consider flexible working hours to compensate for the additional traffic and rush hour traffic. Another alternative could be working from home at least part of the period, for those employees whose job would permit. Obviously employers would need to monitor employee productivity in this case.

“Any of these options would require clear communication to employees well before the Games in order to allow them to make arrangements.”

Hotspot locations can be found on the Olympic Games website at http://www.london2012.com

How should we communicate changes to our staff?

“All communications should be put in writing, ideally in a policy document, and should be circulated well in advance of the Games, especially if the company is insisting that holidays are booked before a certain time to allow for a ballot selection. The business may ask their management to communicate the content of the written communication / policy in team meetings as well as sending a copy to each employee via emails and also posting the information on notice boards.”

What happens if staff have enjoyed a few drinks over lunch whilst watching the Games or come in hungover from celebrating the night before?

“Companies should ensure that they have a robust Alcohol and Drugs policy which covers lunchtime drinking of alcohol, drinking of alcohol on site and how employees will be dealt with if the company believed them to be intoxicated at any time. A polite notification to staff outlining these rules should be enough to discourage these behaviours. With hangovers, employees should be reminded that they need to be in a fit state at work the day after any big events and able to carry out their duties and tasks, with the threat of disciplinary action for anyone breaching these rules.”

Be aware that, although redundancy is a potentially fair reason for the dismissal of an employee, a dismissal may be held to be unfair if the employer fails to adopt a reasonable redundancy procedure which includes identifying ways to minimise the number of redundancies required.

1.     Ensure there is a genuine need for redundancies

Under s.139 of the Employment Rights Act 1996, an employee is dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to:

-the fact that the employer has ceased or intends to cease:

• to carry on the business for the purposes for which the employee was employed, or
• to carry on that business in the place where the employee was so employed, or

-the fact that the requirements of the business have ceased or diminished or are expected to cease or diminish:

• for employees to carry out work of a particular kind, or
• for employees to carry out work of a particular kind in the place where the employee was employed by the employer

2.     Establish how many employees you propose to make redundant

Before considering numbers review the business needs in reference to the business strategy and the processes that underpin the delivery of that strategy.  Then you can determine what skills / roles are required in order to deliver the business processes.

The total numbers involved will also affect the timescales of the process and whether you have to give formal notification of the potential redundancies to the Secretary of State via a HR1.

• If 20 to 99 employees are to be made redundant at one establishment over a period of 90 days or less, the consultation process must last at least 30 days before the first dismissal takes effect
• If 100 or more employees are to be made redundant at one establishment over a period of 90 days or less, the consultation process must last at least 90 days before the first dismissal takes effect.

3.     Ensure employees are given as much advance warning as possible

Through verbal and written communication advise the employees of the likely redundancy situation and give them the opportunity of making suggestions and representations to avoid the redundancy situation. Always ensure that discussions with employees or their representatives are done on the basis of ‘proposed’ redundancies.  Make it clear that a final decision will not be made until the consultation process has been completed.

4.     Invite employees to volunteer for redundancy

You are under no obligation to accept a request for voluntary redundancy (VR) and indeed any such request should be considered in line with your business strategy and process as referred to above. Don’t risk losing skills, experience and tacit knowledge that are critical to the future success of the business.

5.     Identify the pool for redundancy selection

When identifying the pool for selection consider for inclusion; those employees who undertake the same or similar roles in all parts of the business; employees whose work is interchangeable with those at risk of redundancy; employees of any associated companies who carry out the same or similar functions to the employees at risk of redundancy.

6.     Selection criteria

Identify objective and reasonable criteria to be used (or adhere to any customary or agreed arrangements in place) to select from the pool(s) those who may be made redundant and apply them consistently and fairly. During the consultation process ensure employees or their representatives have the opportunity to make suggestions and representations about the selection criteria and the method of applying them.

7.     Alternative jobs within the company

If there are other vacancies in the company, or any associated companies, ensure these are widely communicated to all employees at risk throughout the consultation process and up to and beyond the termination date if appropriate.

Be careful not to make assumptions that an employee at risk would not be interested in any potential vacancy, i.e. because of pay, location, hours or work etc.  Do not fill other positions in the company that have not been presented as an opportunity to those employees at risk of redundancy.

8.     Individual consultation before the final decision is taken

Individual consultation with each employee who is at risk of redundancy is a critical part of a fair redundancy process as this is the employee’s opportunity to ask questions, seek understanding about the business rationale, find out what this means for them as an individual.

Case law has shown that dismissals have been found to be unfair where a union has been consulted but not the individual.

Open and regular face to face, one to one, communication with employees at risk of redundancy demonstrates that you are managing each individual with dignity, respect and understanding.  It is also an opportunity for you to assist them in managing this difficult process of change and preparing them for opportunities that may lie ahead.

9.     Allowing time off to look for other work

Employees who have been given notice of dismissal by reason of redundancy must be permitted a reasonable amount of paid time off work before the end of their notice to look for new employment – for example, attending job interviews – or to make arrangements for training for future employment. To qualify for such time off, employees must have been continuously employed for at least two years by the date their notice is due to expire (or would expire if the correct minimum notice were given).

What is “reasonable” time off will depend on the circumstances of the individual case, such as how difficult finding new employment is likely to be, the distance that the employee may have to travel to do so, and the needs of the employer.  An employee who is permitted to take time off is entitled to be remunerated at the appropriate hourly rate

10.  Continue to monitor the position during the notice period

It is important that the company continues to monitor the business situation during the notice period and communicate with the employees, who have been served notice of redundancy, accordingly.

This may mean discussing with employees of a change in business focus or strategy to that discussed during their consultation meetings; alerting them to potential new opportunities they may wish to apply for; supporting them in their search for new employment externally.

Dont forgot those staff who may be on garden leave – they are still employees and should be communicated with in the same way as if they were still working their notice period.

The Employment Appeal Tribunal has held that the employer’s decision to restrict a redundancy selection to one employee, when there were other employees doing the same job who could have been put in a redundancy selection pool, made his dismissal unfair.

Ms Byard was an actuary, working with three other actuaries in the same place of work. In May 2009, it became apparent that the number of Ms Byard’s clients was likely to diminish and she was going to be left with only three or four clients, with pension assets totalling around £6 million. The three other actuaries had varying fortunes at this time of a greater or lesser value.  The employer accepted that Ms Byard was a good and conscientious worker and did not put the reduction in her clients down to poor performance. However, the employer chose to place Ms Byard alone at risk of redundancy. The three other actuaries were not put in a redundancy selection pool with Ms Byard. The result was that the claimant was made redundant, although the employer did attempt to find alternative work for her. She claimed unfair dismissal, arguing that her dismissal was unfair because Mr Winkler, Mr Spreckley and Mr Pearce were not put at risk of redundancy alongside her.

The employment tribunal, albeit by a majority, held that the employer’s failure to create a pool containing all four actuaries who did the same or similar work made Ms Byard’s dismissal unfair.

Declaration of criminal convictions

The Government has announced that the timescale during which job applicants must tell employers about past criminal convictions is to be reduced under new legal reforms.  In the first change to the Rehabilitation of Offenders Act for 28 years, the time in which jail sentences and conviction are considered spent (i.e. they no longer have to be declared) could be more than halved.  It is hoped that this move will boost job opportunities for those with a criminal history and cut the risk of reoffending.

Declaration of a new employer

The High Court has confirmed that employees leaving an organisation for a new job do not have to reveal details about their prospective employer to their current one.  The court held that an employee’s duty of fidelity to a current employer does not always trump the duty of confidence to a potential employer.

‘Stats Corner’

*The rise in the limits applies where the event that gives rise to the award or payment occurs on or after 1 February 2012.

However, many employers elect to provide full written terms (contract of employment) at the same time as the offer of employment is made. This helps to reduce the likelihood of misunderstandings arising over what has in fact been offered.

The distinction between a contract of employment and a written statement is as follows:

Information that must be included within the written statement is as follows:

It is impossible to include clauses that cover every eventuality however the written statement need not restrict the employer in any way. In fact, it is possible for flexibility to be included within many of the key terms and it is therefore advisable for the employer to include some flexibility.

Some key points to note in relation to specific clauses:

Benefits

Should specify the contractual benefits to which the employee is entitled. However, because the full details of the policy on a particular benefit may be too lengthy to set out in the contract of employment, or the policy may be subject to regular change, the contract may refer to a separate detailed document setting out the full policy and terms. This should always be available on request, and employees should be consulted, or at the very least notified, in advance of any changes.

Hours of work

The normal hours of work must be included in the written particulars. If the employee is to be required to work overtime, this too should be stipulated in the written particulars. Annualised hours, casual hours and zero hours contracts require particular care in drafting. It may be a good idea for the employer to include a flexibility clause authorising the company to change the employee’s hours to meet future business needs, and in this case it is clearly sensible for it to include authority to change the employee’s rate of pay in the event that hours are altered.

Holidays

Any entitlement to holiday, including public holidays, and holiday pay has to be included in the written particulars. Under the Working Time Regulations 1998, and Working Time (Amendment) Regulations 2007 workers are now entitled to 5.6 weeks’ annual leave, which may include bank and public holidays. The entitlement to the four weeks’ basic leave cannot be carried over to the next holiday year nor can there be a cash substitute for annual leave except on termination of employment. Employers can fix their own conditions for any additional contractual leave that they offer over and above the 5.6 weeks’ statutory minimum. There is no entitlement to leave or paid leave on bank holidays unless there is an express or implied term to that effect in the employee’s contract.

Mobility

The place of work has to be notified in the written particulars but it is possible also to include a mobility clause entitling the employer to move the employee to a different workplace. Whenever the employer exercises the power to relocate an employee, it must act reasonably in the manner in which it seeks to exercise the mobility clause, or it will be in breach of the implied duty of mutual trust and confidence. Employees whose contract stipulates that they may be required to work abroad can later refuse to go if they find they have to travel to an area where their life would be at risk. Employees sent to work abroad for more than one month must be provided with additional information in their written particulars before they leave.

Notice period

Notice clauses should provide for a minimum period of notice at least equivalent to the statutory minimum period of notice. If there is no express clause in the contract, the employee is entitled to a reasonable period of notice at common law. If an employee’s contract is terminated after one month but before two years’ service has been completed, statutory notice is one week. After two years and up to 12 years’ service, the statutory notice period is one week for each completed year of continuous service. For employees with more than 12 years’ service, the minimum notice period is 12 weeks.

Pay

The written particulars should set out the scale or rate of pay, the intervals at which an employee should be paid and, if applicable, details of overtime payments. On overtime the contract should include:

Restrictive covenants

A restrictive covenant is an agreement (usually a clause within a contract) between an employer and an employee that restrains the employee from carrying out certain actions both during employment and in the event that the employment ceases. Restrictive covenants are primarily concerned with protecting the employer’s interests when the employment has ceased, as employees are under a duty of fidelity and cooperation, which protects employers during employment. The actions that covenants commonly seek to prevent a former employee from carrying out include:

For further advice call P3 People Management on 0161 493 1963.