Round up of things that have caught my eye in the world of HR and Employment Law

My latest round up of things that have caught my eye in the world of HR and employment law are provided below. Topics covered are:

1. Helping employees with the cost of living crisis

2. Free service to help employees with their mental health

3. Free sales training for Nottinghamshire and Derbyshire businesses

4. Are you struggling to recruit at the moment? Or are you losing staff?
5. Calculating public / bank holiday entitlement for part-time workers

6. Employment Status Guidelines for Employment Rights and Tax Purposes

7. Employee rights – Long Covid and the Menopause

8. Holiday Pay for “Part-Year” workers and using the 12.07% calculation

  1. Helping employees with the cost of living crisis

There are things that you can do that might help your team with their finances, without it costing you money eg could you (where feasible):

  • Allow the team to work their contracted hours in fewer days* (eg working their full time hours over 4 days instead of 5 or part time hours split across fewer days?) or offer a Zero hours contract, freeing up time to take on a 2nd job? 
  • Check to see whether anyone working at home would prefer to be in the office to save on utility costs? Or whether anyone in the office would prefer to work from home or other local location to save on travel / fuel costs *
  • Offer advances on wages in an emergency (obviously a signed agreement regarding repayment would need to be put in place to enable you to recover the advance from future wages either in one go or over an agreed period of time)
*See process guidance for changing working arrangements at the bottom of this communication

  1. Free service to help employees with their mental health

The Access to Work Mental Health Support Service is part of a range of support offered to small businesses, fully funded by the Department for Work and Pensions. It provides free, confidential mental health support to any employee in paid employment struggling with their mental health, including:

  • Stress and anxiety 
  • Resilience 
  • Dealing with change 
  • Mindfulness 
  • Communication and working with others

Visit this link to find out more and arrange free support: https://information.maximusuk.co.uk/Wellbeing-Event/atw.html

  1. Free Sales Training course for Nottinghamshire and Derbyshire SMEs

Vision West Nottinghamshire College in Mansfield is providing Sales Training Courses, free of charge to employees of SMEs in the D2N2 (Derbyshire / Nottinghamshire) area under their Reskills to Recover project. The course will cover a variety of skills such as the sales process, negotiation, follow-up techniques and more.

The next course is on Tuesday 13th September.

For further details and to reserve a place email: skills@wnc.ac.uk 

  1. Are you struggling to recruit at the moment? Or are you losing staff?
What can you do to attract or retain staff without increasing pay? Recent surveys are suggesting that the perks employees are currently looking for are:
  • Flexible hours or full hours in 4 days rather than 5 (save on travel costs)
  • Working from home part or all of the time – benefit is work life balance, no travel costs
  • A specific number of days paid sick leave in a 12 month rolling year
  • Extra holiday allowance or the option to take additional unpaid leave
Why not also consider offering a paid day off if an employee’s birthday falls on a working day, a half day off for Christmas shopping, paying Christmas wages early or obtaining staff discounts from local shops and venues?

  1. Calculating public / bank holiday entitlement for part-time workers

I am often asked how to calculate holiday entitlement for employees who work part time and who are not contracted to work on days where a bank holiday falls.

Guidelines state that employers must ensure that employees receive at least the statutory minimum annual holiday entitlement of 20 days, pro rata. However, the Working Time Regulations do not deal with whether an employer should give time off in lieu for missed public / bank holidays. It is advised, however, that those who work part-time should not be treated less favourably than a comparable full-time worker under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Therefore if you are paying full-time staff not to work a public / bank holiday, then part-time staff should be entitled to a pro-rated public holiday entitlement, to avoid any claims of less favourable treatment.

The government has a useful calculator to help work out holiday entitlement. The calculations include any allowance for bank holidays. The tool can be found here: Calculate holiday entitlement – GOV.UK

  1. Employment Status Guidelines for Employment Rights and Tax Purposes

The government has recently issued new guidelines on how to define whether a worker is classed as an employee or a self employed contractor. All employers must carefully consider employment status before taking a worker on, to ensure that their method of engagement accurately reflects the on-going reality of the relationship. 

Employment status defines the responsibilities employers have to their workers, who is responsible for paying tax and NI and what rights and protections workers might be entitled to, such as the minimum amount you should be paying them, and whether they are entitled to paid holiday, maternity / paternity leave etc  

Incorrectly classifying an employee as a contractor or vice versa, can put you at risk of a claim not only from the worker but also from HMRC if taxes and NI haven’t been paid by the employer when they should have been.

This government tool will help you to assess and identify the correct employment status of a worker: Check employment status for tax – GOV.UK

The Employment Rights table half way down the government page accessed via the link below, shows the differences between the rights of Employees and Workers (contractors) set out in the following sections:

A. Worker / employee rights (comparison)

B. Employee rights day 1

C. Employee rights with qualifying period

Employment status and rights: checklist for employers and other engagers – GOV.UK

  1. Employee rights – Long Covid and the Menopause

Although long covid and the menopause have not been confirmed as disabilities under the Disability Act, tribunals are seeing an increase in claims for unfair treatment and discrimination (with the menopause, sex or age related) due to these medical conditions.

It is important to remember that a person is classified as disabled under the Equality Act 2010 if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities.

What does ‘substantial’ and ‘long-term’ mean?:
  • ‘substantial’ is more than minor or trivial eg it takes much longer than it usually would to complete a daily task (like getting dressed)
  • ‘long-term’ means 12 months or more eg a breathing condition that develops as a result of a lung infection

Therefore, if an employee tells you that they have long covid or are going through the menopause, consider what “reasonable” adjustments you could potentially make to help them attend work regularly and make a positive contribute. What is ‘reasonable’ will depend on each case, however. you will need to consider carefully if the adjustment:

  • will remove or reduce the disadvantage for the person with the disability
  • is practical to make
  • is affordable for the employer or business
  • could harm the health and safety of others

Further guidance on reasonable adjustments can be found here: Reasonable Adjustments – ACAS

  1.  Holiday Pay for “Part-Year” workers and using the 12.07% calculation

Holiday pay

In a recent  Supreme Court ruling (Harpur Trust v Brazel) those that are employed on an educational / school term-time type of contract are still entitled to the full, minimum statutory holiday entitlement of 20 days plus 8 bank holidays / 5.6 weeks per year, regardless of the fact that they only work for a proportion of the year.  

This does appear to be unfair, as those who work part time or on a zero hours contract still have their holidays calculated pro-rata! I expect there may be some challenges on this in due course.

Note: If you employ seasonal workers, make sure that their contracts are for a fixed term, with a clear end date, so that the contract doesn’t run indefinitely, putting you at risk of a similar claim as that quoted above.

Further details regarding the Supreme Court ruling can be found here: Part-year worker holiday pay ruling will raise costs for UK employers

Using the 12.07% calculation

In addition, the Supreme Court has confirmed that the 12.07% formula commonly used to calculate holiday pay for workers with irregular hours is incorrect. Using it will, in some cases, result in an underpayment. Further details regarding the ruling can be found at: Using the 12.07% formula to calculate holiday pay

Government guidance along with a worked example can be found here: Calculating holiday pay – irregular or zero hours workers

As always, if you have any questions or require further guidance on any of the matters covered in this update, please get in touch: 

Email: ns@nickysilverhr.co.uk

Tele:   07913 121290

* Procedure for Changing Working Arrangements

By law, any employee who has worked for you for at least 26 weeks has the legal right to request flexible working ie a change in working hours or other arrangements such as working from home.

The process that needs to be followed to ensure that each request is treated fairly and consistently (and to avoid any sort of claim) is:

  1. The employee puts their request in writing, fully explaining:
  • the change they are requesting eg: a change of working hours / breaks / start / finish times/ different working pattern / to work from home / a reduction in working hours or days etc. They need to state what the current agreement is and what they want to change it to;
  • the date on which they would like the new terms and conditions to come into effect;
  • what effect and impact the employee thinks the requested change would have on the organisation, including but not limited to the impact on: other team members, workloads, completion of tasks or processes, customers, clients, service levels, sales, income etc;
  • how, in the employee’s opinion, any such effects in the point above might be dealt with or mitigated;
  • a statement that this is a statutory request for flexible working;
  • a statement confirming whether the employee has made a previous application for flexible working and if they have made a previous request, when that request was made.
  1. Once you receive the employee’s request in writing, you then have 28 days to respond. It is good practice to invite them to a meeting to discuss their request so that you can clarify all of the facts before making a decision.
  1. Making your decision: You can agree to a permanent change, a temporary change on a trial basis or to refuse the request. There are 7 reasons that a business can use to decline a request:
  • extra costs that will damage the business
  • the work cannot be reorganised among other staff
  • people cannot be recruited to do the work
  • flexible working will affect quality and performance
  • the business will not be able to meet customer demand
  • there’s a lack of work to do during the proposed working times
  • the business is planning changes to the workforce
  1. If you agree to the change on either a permanent or temporary basis, confirm your decision in writing stating:
  1. exactly what the current arrangement is
  2. exactly what the arrangement will change to
  3. when the change will take effect from
  4. if it is a temporary arrangement, the date that the arrangement will cease and:
    1. whether that will be the end of the arrangement completely; OR
    2. when you will have a follow up meeting to review how it has gone and agree whether it will become a permanent arrangement.
  1. If you are declining the request, it is good practice to hold a meeting with the employee to explain why and answer any questions. Then confirm the outcome in writing. Remember, you must use one or more of the reasons quoted under point 3 above as the main justification for your decision.
  1. Employees must also be given the right to appeal any decision by putting their appeal in writing, confirming the grounds for the appeal and providing any supporting evidence.

Further guidance can be found at: https://www.gov.uk/flexible-working