In the last 10 years, the UK has seen the first December General Election since the 1920s, watched countless hours of news coverage on the topic of Brexit and witnessed Larry the cat assume office as Chief Mouser to the Cabinet Office. Yet the dawn of a new decade heralds some important changes and new additions to UK employment law that come into force in April 2020 including amendments to the Working Time Regulations 1998 and Employment Rights Act 1996.
Read on to find out what the law currently states, what changes will come into effect on Monday 6th April 2020 and what these changes will ultimately mean for UK businesses.
(Amendment to the Employment Rights Act 1996)
At present, UK employment law states that an employer must give employees a written statement of employment particulars within the first two months of their employment (providing their employment lasts more than a month). This document, often contained within a contract of employment, outlines the basic terms and conditions of employment.
These can be delivered in instalments, as long as all particulars are delivered within two months of the start of employment.
At minimum, a principal statement of particulars must include:
A further written statement must also contain information, where applicable, about:
Amendments to UK employment law that come into force in April state that employees have “the right to a written statement of particulars of employment when an individual begins employment (a day one right)” (Legislation.gov.uk, 2018).
Employers will also have to include further information on the statement of particulars when an employee joins a business.
Furthermore, existing employees can, on or after 6th April 2020, request an updated statement of particulars from their employer. This must be delivered to the employee no later than one month after the request has been made.
This amendment to the Employment Rights Act states that a statement of particulars can no longer be delivered in instalments, but must be provided to all employees from day one of starting work and as one single document.
In short, you need to be better prepared when welcoming new employees to your business. Review your existing contracts and make the necessary changes to accommodate these changes. Make sure your business’ contract of employment covers off all of the required information for a statement of particulars and update it as necessary for any new employees.
This should ensure clearer lines of communication between HR in preparing a contract and/or statement of particulars and the manager conducting interviews and negotiations with candidates. The job being offered should be documented in its entirety and all of the necessary information required for a statement of particulars should be clear and agreed between HR, the hiring manager/head of department and the new starter ahead of their first day.
While the changes to the Employment Rights Act 1996 don’t state that you have to provide all existing employees with an updated statement of particulars – be prepared for an existing employee to request one on or after 6th April 2020 (and at any time up to three months after the end of their employment).
(Amendments to regulation 16 of the Working Time Regulations 1998)
As it stands, all employees are entitled to paid annual leave and they must be paid the same amount when on holiday as they would receive when they’re at work – regardless of their working pattern.
Holiday pay can be calculated based on the days or hours worked per week, annual hours, compressed hours or shifts.
If an employee’s working hours don’t vary (i.e. they work 9 am – 5:30 pm, 5 days per week), their holiday pay should be calculated using their usual pay rate.
For example, Jack works from 9 am to 5:30 pm every day, Monday to Friday. If he takes seven days of annual leave in January, he will be paid the same amount as if he has worked a typical week.
However (and this is where it gets a little complicated), if an employee doesn’t have fixed or regular hours or their pay isn’t always the same, their holiday pay is calculated based on the average number of hours worked, at their average pay in the previous 12 weeks. 12 weeks being the current holiday reference period under the current iteration of the Working Time Regulations.
For example, Jill has worked an average of 23 hours per week over the last 12 weeks and has been paid an average of £10.50 per hour for her work. As such, she would be entitled to £241.50 per week as holiday pay (£10.50 per hour x 23 hours).
The amendments being made to the Working Time Regulations 1998 that come into force in April will make changes to the holiday reference period which is currently 12 weeks.
The holiday reference period used to calculate holiday pay for variable workers is being increased to 52 weeks (for employees that have been in your employment for more than 52 weeks).
Thus, to calculate the holiday pay for an employee on variable hours or pay, you will need to work out the average hours worked and average pay from the previous 52 weeks.
If you have employees on variable hours or pay that have been in your employment for less than 52 weeks, the holiday reference period will be the number of weeks for which they have been employed. Again, you would need to calculate the average number of hours worked and that average pay for the period of time they have been employed.
As with current employment law, any weeks an employee hasn’t worked or received pay for should be excluded from your calculations.
These changes to the methods in which holiday pay is calculated should greatly benefit employees on variable hours. The change in reference period should help even out any peaks and troughs in pay for employees, particularly those in seasonal roles.
What it does mean for your business, however, is that you must ensure that your records of the hours worked and pay received by these employees are correct as any incorrect records will directly impact an employee’s pay. Online clocking in systems or timesheets can be helpful to track the exact hours worked by each employee, where details of hours worked and any variable pay entitlement can be logged. This information is then securely stored online and is easily accessible whenever employees make annual leave requests.
While there is no current law relating to parental bereavement in particular, under current UK employment law, most employees have a statutory right to a ‘reasonable’ period of unpaid time off to deal with unforeseen matters or emergency situations that involve a dependent. This includes time off to arrange or attend a funeral. A dependent can be a spouse or civil partner, child, parent or someone who depends on you for care or help during an emergency.
Also known as compassionate or bereavement leave, some employers may have policies in place that offer a defined number of days that will be paid during such difficult times, but this is entirely at the employer’s discretion.
Monday 6th April 2020 will see an addition to the Employment Rights Act 1996 called Parental Bereavement Leave come into force.
This additional legislation entitles parents up to two weeks’ paid leave if they lose a child under the age of 18 or suffer a stillbirth from 24 weeks of pregnancy as a day one right.
Bereaved parents must take their leave before the end of a period of at least 56 days beginning with the date of the child’s death. Parents can choose to take this as one block of two weeks’ paid leave or two blocks of one week, as long as the leave is taken with 56 days of the loss of their child.
In the case of losing multiple children, parents will be entitled to paid leave for each child.
While changes to the law surrounding parental bereavement are imminent, making sure you have the right support in place in your business should not be an afterthought. Both managers and colleagues should be able to support an employee going through a bereavement of any kind.
While it is not mandatory to have a compassionate or bereavement leave policy nor do you have to pay employees during a period of time off for any situation or emergency involving a dependent; most employers do pay for a certain number of days off for dependents each year.
However, the Parental Bereavement Leave Act will make paid leave for parents that experience the loss of a child or a stillbirth a legal right.
While the new legislation will provide a solid foundation for businesses in devising a policy that supports bereaved parents, it is still the bare, legal minimum that must be provided. Be sure that your bereavement policies support employee wellbeing. Remember, it’s not a ‘one size fits all process’, we all deal with grief differently and you need to make sure your employees are reassured and supported in both the immediate aftermath and after they have returned to work to help bring them back to their full potential.
If you’re readying your business for these changes to employment law due on 6th April, an all-in-one HR software solution can help. From comprehensive onboarding workflows that ensure statements of particulars are prepared in good time to tracking hours worked with an integrated clock-in system; Natural HR can do this and so much more.
Please note: while we here at Natural HR work with HR professionals every day, we are not lawyers. This post is a high-level summary of government changes to employment law coming into force later this year and should not replace sound legal advice available from professional solicitors or employment lawyers.
Article originally published by Natural HR
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Can I prevent an employee from joining a competitor business? by HR 24
Post-termination obligations or restrictive covenants, within a contract of employment whereby the employee agrees not to do certain things after they leave the company are typical of employers with wide competition. They are usually difficult to enforce unless it can be proved to be reasonable and written to genuinely protect legitimate business interests. Therefore, the extent of the restrictions must be relative to the employees’ position within the business.
A restrictive covenant should include specific restrictions. These specific restrictions are tailored to prevent your employee from using company information to support a competitor or alternatively aid them in setting up indirect competition. The majority of these Restrictive Covenants will have a time-limit applied. Any longer than a year could be deemed as unreasonable.
There are generally four types of restriction. These obligations are set out in a restrictive covenant.
This seeks to prevent an ex-employee from directly competing or working for a competitor, normally within a specific geographical area and for a set period of time, usually six to twelve months.
This seeks to prevent an ex-employee from approaching existing customers for a set period of time, usually six to twelve months.
This seeks to prevent an ex-employee from recruiting former work colleagues for their new employer for a set period of time, usually six to twelve months.
This seeks to prohibit the use of any confidential information acquired by the employee during their employment.
Restrictive covenants can work to protect an employer’s business. They can provide leverage or influence even if an employer would rather not pursue the matter to a full court hearing or seek an application for an injunction.
On the one hand, employers wish to protect their business interests, but on the other hand, an employee has a right to earn a living, so any restrictions have to be seen as reasonable to prevent any suggestions of a restraint of trade.
A Garden Leave clause may be worth including within your documentation if you are concerned about Restrictive Covenants. This allows employers to tell an employee that they are required to spend all or part of their notice period at home and during this time they are unable to take up other employment preventing them from working for a competitor. However, during the period of garden leave, you will be required to pay them their usual salary and benefits.
Is this all legal?
The covenant needs to be reasonable to stand a chance of being enforceable and should be outlined to a potential new employee prior to commencement rather than being suddenly introduced after the commencement of employment.
An employee should as well be reminded of the restrictions in place prior to leaving at their exit interview. It is a fine balance but a carefully worded document that is not unreasonable can be worth the paper that it is written on.
Article originally published for HR 24
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Wording in Your Job Advert and Discrimination by Elizabeth Babafemi, B.Eng MCIPD – MBA – Doctoral PhD Student
If we only recruited people from a certain age range, race or gender, life would be pretty dull!! I once saw an advert that read: the company is looking to recruit an individual with “at least seven years’ experience (preferably continuous)”
It is arguably discriminatory on the grounds of age and, possibly, sex. The fact that the advertisement specifies a requirement for individuals with “at least seven years’” experience invariably means that older applicants are more advantaged than younger applicants since they are more likely to have at least that level of experience. Furthermore, the fact that seven years’ continuous experience is stated to be preferable arguably means that women are being put at a disadvantage because they are more likely to have had a break in employment (to care for children, for example) than their male counterparts.
The legislation can be a somewhat difficult and blurry area to understand, especially as many employers are unaware of how the wording in their job advert can be seen as discriminatory. It is no wonder you may have heard a number of cases about businesses and companies facing legal action over discrimination in their job advert.
Below is by no means a definitive list, and there are a number of other ‘protected characteristics’ which should be carefully considered when drafting a job advert, particularly, of course, if they are requirements for the job.
If in doubt, keep the language neutral. That way you may ensure you don’t miss out on the right candidate for the role and that you keep your recruitment equal, and inclusive.
Over the years, I have seen some ads state: ‘English must be your first language’. Admittedly the jobs being advertised are writing jobs that require a certain ability with words, but surely the question of whether English is your first or second language should not come into it. Could you not be someone who speaks both languages equally fluently?
Some job boards are visited by lots of people from foreign countries, I would be more inclined to interpret ‘English must be your first language’ as ‘no foreigners please’.
To attract the right quality of applicants, we should get our adverting process right. We should plan and carefully consider the content and design of the job advert. We should also identify the most suitable media for advertising the job in order to reach an appropriate audience.
There are lots of rules around writing job adverts, mostly based around best practice to attract candidates. But certain rules are there to ensure you don’t fall foul of discrimination law.
Only use phrases like ‘recent graduate’ or ‘highly experienced’ when these are actual requirements of the job. This could discriminate against younger or older people who might not have had the opportunity to get certain qualifications.
You can specify that the successful applicant will be from a particular group if it’s a requirement of the job. For example, people under 18 cannot legally sell alcohol.
As much as you might want to balance up your gender heavy department with a member of the opposite sex, this is strictly forbidden to ask for within a job advert.
Gender-specific terms could also be problematic. Using ‘bar maid’ or ‘handyman’, for instance, implies that the job is only available to one or other sex. ‘German-speaking sales rep’ should be used over ‘German sales rep’, because it would be discriminatory single out one nationality, if it’s just the language skill that’s needed.
There are certain roles where there is a genuine occupational need for an employee to be of a certain gender, such as within single sex institutions like hospitals and prisons. You are never allowed to consider that hiring one gender may provide a benefit in terms of physical performance, unless that performance is of a thematic nature (such as the need for a male to play Father Christmas).
a) It is vital to prepare a job description and person specification as these can provide us with a useful basis for designing a job advertisement.
b) All forms of job advert are covered by the Equality Act 2010.
If you are a disabled person
If an employer does advertise a job, they must not state or imply that a job is unsuitable for disabled people generally or for a disabled person with a particular type of impairment, unless there is a very clear job-related reason for this.
An employer is advertising for somebody to deliver parcels on their own; the advertisement states that the successful applicant will have to drive and be able to lift the parcels. The need to drive is clearly required for the job. Although it may exclude some disabled people e.g. those with a sight impairment, it would not exclude all disabled people. It would therefore be wrong – and discriminatory – to put ‘unsuitable for disabled people’ in the job advert.
c) Employers must not publish adverts that indicate, or could reasonably indicate, an intention to discriminate.
For example: An employer advertises for a ‘waitress’. To avoid direct discrimination because of sex, they should advertise for ‘waiting staff’ or ‘waiter or waitress’. The job title you use should therefore never be gender specific – ‘waitress’, ‘salesman’ and ‘manageress’ are all terms that fall foul of the law.
d) Adverts should contain enough information about the job and the organisation to help applicants decide if they are suited to the job.
e) Adverts must not target applicants with a particular protected characteristic, unless this is an occupational requirement or lawful positive action. Positive action may be used to encourage applications from under-represented groups
f) Relying upon ‘word of mouth’ recruitment has the potential to indirectly discriminate.
A large employer recruits workers to driving jobs through word of mouth. This results in everyone who has a driving job being a member of the same few families or a friend of these families. All the family members and their friends are white, despite the workplace being in an area of high ethnic minority population. Unless the employer can objectively justify the way drivers are recruited, this is likely to be indirect discrimination because of race.
g) Employers may be liable for the discriminatory actions of third parties, who are advertising on their behalf.
h) Employers must not put pressure on third parties to discriminate in the recruitment process.
Age discrimination is an area to consider when writing job adverts, and it is one of the biggest changes in process that most employers will have to go through in order to comply with all discrimination regulations. The rules now not only cover stipulating upper or lower age limits for job applicants, but also implied terms such as ‘youthful’, ‘dynamic’ or ‘mature’. All these terms could be seen as excluding someone from applying for a role based on their age.
Even asking for a certain level of experience from candidates could be deemed as discriminating against someone who hasn’t had the opportunity to gain that experience as they are too young. There are plenty of ways of rephrasing your job advert, such as asking for candidates who have demonstrated a certain task, but putting a number of years on how long they have taken to achieve that task is definitely out of the question.
i) Employers must provide temporary agency workers/fixed term employees with information on relevant job vacancies.
Other examples: A job advert requiring that applicants must be clean shaven could put members of some religious groups at a disadvantage. However, if this is fully justified by stating that it could be a genuine hygiene risk if individuals handle food, then this criterion would then be lawful.
Avoid gender-based discrimination: Ensure your job title doesn’t include terms like “waitress”, “admin girl”, “mail man” or “salesman”. That way you won’t find yourself in hot water.
Avoid racial discrimination: Even if the ability to speak a foreign language is critical to the role, it’s the proficiency in the language as opposed to one’s country of origin that is key. So “the ability to speak Mandarin is essential” is far more favourable than “you must be Chinese”.
Avoid age discrimination: Never mention an age requirement or refer to a specific number of years someone has worked in a particular field … ever.
Questions you can’t ask when recruiting: You must not ask candidates about protected characteristics and their health; if they’re married, single or in a civil partnership; if they have children or plan to have children.
You can ask about health or disability if: There are necessary requirements of the job that can’t be met with reasonable adjustments; you’re finding out if someone needs help to take part in a selection test or interview; you’re using ‘positive action’ to recruit a disabled person
Date of birth: You shouldn’t ask someone for their date of birth on an application form. People selecting candidates for interview or interviewing shouldn’t be influenced by someone’s age. You can include a question on date of birth as part of an equality monitoring form if you use one.
Criminal convictions: Applicants don’t have to tell you about criminal convictions if they’re spent. You must treat the applicant as if the conviction has not happened, and cannot refuse to employ the person because of their conviction. There are some areas of employment that are exempt from this rule, e.g schools.
Trade union membership: You must not use membership of a trade union as a factor in deciding whether to employ someone.
Disabled people: When recruiting you can treat a disabled person more favourably than a non-disabled person because of their disability.
There have been some interesting developments in case law surrounding job advertisements. A few years ago, the employment tribunal held that a job advertisement stating that a particular teaching role “would suit candidates in the first five years of their career” was indirectly discriminatory on grounds of age since more experienced (and hence older) applicants were put at a disadvantage (Rainbow v Milton Keynes Council 1200104/2007, 2 June 2008).
In that case, the employer tried to justify the wording in its advert by claiming that it had financial constraints and essentially could not afford to employ someone of the claimant’s seniority for the role in question. However, it did not provide any detailed evidence to show this and did not demonstrate that other types of financial strategy had been taken into account to achieve a similar cost-saving. The tribunal rejected the employer’s argument because there was a lack of evidence of the cost issue, the employer had not explored other cost saving measures and costs was the sole justification put forward by the employer.
The upshot of that case was that if employers are to rely on cost as a defence, they should combine it with other reasons and also provide evidence to support their arguments – a mere assertion of costs as a reason is not good enough. The European Court of Justice (“ECJ”) in the past held that there does not need to be an identifiable victim or complainant for there to be a successful claim of direct discrimination against a company (Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV C-54/07). The facts of that case were quite extreme. A director of the Belgian company in question (which specialised in the installation of doors) made a public statement to the Belgian media that the company would not employ Moroccans as its customers did not want immigrants in their homes. Proceedings were brought by the Belgian equivalent of the Equality and Human Rights Commission in the UK.
The ECJ held that the company’s public statement was direct discrimination contrary to the EU Race Discrimination Directive, even though no individual had brought a claim as a result of it. The court rejected the argument that there could not be direct discrimination where the employer did not actually act on the discriminatory statement. The statement had a humiliating and demoralising effect on the people of the ethnic origin in question who would have been interested in applying for the position. It would also discourage such people from applying and was therefore discriminatory. In the UK, it is already unlawful to publish advertisements that display an employer’s discriminatory recruitment practices. However, although this case is likely to have a limited impact in the UK because the Equality and Human Rights Commission does not have the power to bring a claim against employers where there is no identifiable complainant, employers should still be alive to the issue and consider the wording of their job advertisements very carefully.
*This entry was posted in Pulse and was written by Elizabeth Babafemi, B.Eng MCIPD – MBA – Doctoral PhD Student
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An Idiot’s Guide To The Apprenticeship Levy by Mark Stephens
Since 2007 and the start of the last major recession, the government has seen significant increases in unemployment within the ‘out of education’ demographic.
These are people leaving school, college and University and they have been continually looking at ways to address this issue. Unlike other unemployed categories, this demographic presents both a social issue and has the potential to impact an entire generation and they recognise that this could have a social impact for many years to come.
Previous government backed schemes have either failed or been abused, so the apprenticeship programme has become the flagbearer for addressing and solving this challenge.
For the last few years, the Apprenticeship programmes have been voluntary, with the government supporting them through commercial incentives and subsidising training and salaries. The support that was available through the old programme was more commercially significant for 16-20 year olds than it was for 20-24 year olds, which is the age at which it was originally capped.
Under the new apprenticeship programme there will be no age restrictions and apprenticeships will be available for existing employees too.
However, last year the government decided that contributing to this programme should become compulsory for many large companies, who should shoulder the responsibility for ensuring that young people coming out of education should be given real life work experience in order to help them get a step onto the employment ladder.
When this was first proposed there was some significant resistance both in parliament and amongst the business community and so it was amended to include any age group and even existing employees.
For all employers operating in the UK, the levy has been set at 0.5% of all company’s pay bill (payable through PAYE alongside income tax and NI) – but it only applies to those whose wage bill is greater than £3 million pa (this according to government estimates, affects less than 3% of UK business). Also, employers will receive £15,000 from the UK Government to offset against the levy – paid in monthly installments of £1,250. So, if an employer has 250 staff each earning £20,000 the levy will be 0.5% of its £5 million wage bill (£25,000), minus the £15,000 they are given as the offset. This means the levy for this business is £10,000.
To fall under the requirement of the levy, an organisation’s pay bill is defined as the total earnings of all its employees. It does not include other payments, like benefits in kind. UK Government figures suggest around 3% of employers will have to pay the levy.
The government’s own research calculated the value of the levy at over £3billion p/a and even with the provision for businesses to claw this back through apprenticeship training programmes that it is designed to encourage, the worst case scenario for the government still looks like there will be a minimum of £1billion in unclaimed training grants each year from the levy. This is money that the government has already allocated or spent, so don’t expect too many changes on this anytime soon.
So as part of this overhaul, the government released the apprenticeship frameworks for the courses it would cover. The previous apprenticeship programmes were designed to run for 12 months and could be completed in many cases within 9 months. In its ultimate wisdom, the new programmes have not only been designed to run over 2 years, but most of the core apprenticeship frameworks have also been rejected by the government’s own industry representatives as not fit for purpose. This was all back in 2016 and since then a new team of business representatives (between 10-15 major employers from each industry sector, referred to as ‘Trailblazers’) have been tasked with making the frameworks fit for purpose.
Keep in mind that one of the biggest challenges the previous apprenticeship program had was retaining the people joining the program for the full term of the apprenticeship. The statistics for the 16-20 year old category are pretty appalling, so by extending the term of the program, it is likely to add to this challenge even further.
There have also been delays in getting these new frameworks completed and delivered back to government on time and the Jan 17 deadline was missed by most categories. There are more than 200 core frameworks that have still not been approved and are unlikely to be ready until Q4 2017. We estimate that around 30% of all apprenticeship frameworks have been affected. These include key subjects such as sales, support, service, maintenance, engineering etc.
Another significant change to the programme is the way that the programmes operate and are funded. Previously you could contact an approved training provider and they would do everything for you. Source potentially suitable applicants, train them and assess them. They would even source the funding for you.
Now the employer has to source the funding themselves and the funding can only be used towards the training and assessment aspects. The training provider and the assessors must not be connected in any way that might cause a conflict of interest and the recruitment of prospective candidates must not be funded via the programme. The government is being quite strict on this point, as they fear it is open to potential abuse and have stated that if companies are found out to be hiding the recruitment costs within the training costs, companies risk having all their allowance removed and significant fines being imposed.
This means that businesses potentially need to deal with 3 separate providers: Recruitment, Training and Assessment.
It’s all a bit of a mess and is a typical government program that is rushed through without proper due diligence despite good intentions.
The Levy is already being applied to big business and many companies will be unable to draw back against this until Q4 2017 at the earliest. In the meantime companies still have recruitment and training needs and are being urged to press on with these as their allowance will be valid for a number of years, to use against future training requirements.
However, the new apprenticeship program will probably end up helping to significantly address the key issue of high levels of unemployment within the ‘out of education’ demographic once they finally get organised. And one thing is for sure, the government isn’t going to change their mind as the revenues from this program are already accounted for, or even spent already and the delay in over 200 apprenticeship frameworks will probably only increase the number of unclaimed subsidies that they will ultimately be able to keep hold of for themselves.
About the Author
Mark Stephens has worked within the recruitment sector for nearly 20 years both in-house and agency side and more recently within the technology environment. Mark is a serial entrepreneur and is the founder of Smart Recruit Online, the Recruitment Alliance and The HR & Recruitment Resource Library. Mark has dedicated his time since 2007 researching the online recruitment sector from a user, technology, and candidate perspective and is regularly published and quoted by leading industry publications for his research and personal opinions.
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