Loates HR Consultancy

Employment Law Updates - January 2024

The government has made several amendments to the law on holiday pay, working time and TUPE. These changes are so that EU-derived regulations remain part of UK employment legislation after Brexit. Below is a summary of the changes in January 2024 to The Working Time Regulations 1998 and The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023.

🔸Simplfied holiday calculations
Rolled-up holiday pay (12.07% of pay) will be made lawful for part-year workers and those who work irregular hours. For leave years beginning on or after 1st April 2024, the 12.07% accrual method for those workers, in the first year of employment and beyond, will apply.

🔸Carrying over leave
The changes allow carryover of all statutory annual leave to the following year, where a worker has been unable to take their leave due to being on family-related leave i.e. maternity, paternity or parental leave. This includes various pieces of legislation concerning the carryover of leave in long-term sick cases, and where a worker has not been allowed to take annual leave.

🔸Overtime and commission payments
Pay calculations for holiday pay, concerning carried-over leave, are to include commission payments and other payments, such as regular overtime payments.

🔸Workimg time record-keeping
Amendments are leading to the removal of the additional working time record-keeping requirements that were previously part of The Working Time Regulations 1998.

🔸TUPE Transfers
Small businesses (with fewer than 50 employees) undertaking TUPE transfers of any size, can consult their employees directly, rather than elect employee representatives.

In line with these changes, the government has provided updated guidance on holiday pay here: https://zurl.co/TARO

5 tips to avoid festive bullying
Bullying is unfortunately a hot topic right now – take the other reindeer who used to laugh and call Rudolph names. As we approach the festivities, here are some tips to keep a positive and inclusive workplace.

1. Celebrate uniqueness
Rudolph was picked on because of his unique glowing nose. Despite this bullying, his distinctive feature was the key to guiding Santa's sleigh through a stormy night. Therefore, remember to celebrate the differences in your team. Everyone has their own unique skills and perspectives.

2. Lead by example
Remember the compassion shown by Santa asking Rudolph to guide his sleigh? As managers, lead with empathy and a commitment to create a workplace of inclusion and kindness. Create a culture where bullying has no place.

3. Spread kindness
The other reindeer then shouted out with glee and told Rudolph he’ll go down in history. Take a moment to express gratitude and appreciation for your colleagues. A simple "thank you" or a small act of kindness can go a long way in creating a supportive atmosphere.

4. Challenge and communicate
Sadly, Rudolph didn’t tell Santa how he felt picked on. Therefore you must create a safe space for colleagues to express themselves or raise any concern. Ensure that everyone feels heard and understood. If you witness or suspect any form of bullying, be like Santa and stand up against it.

5. Training
We’ll be advising Santa and his reindeer to attend regular training on equality, diversity and inclusivity. Santa can also refresh his training on how to spot and deal with workplace bullying.

We hope this story comes as inspiration to you. Season’s greetings to you and your team.

A big thank you to everyone who joined us today for our Christmas Jumper Day celebrations and thank you to the Loates HR Consultancy team for your support.

The rain may have come out but the festive cheer was all around! It's definitely starting to feel like Christmas!!!!!

Managing Employees With Second Jobs.

Given the current cost of living crisis, some employees may be looking to take on a second job. But what are the legal implications of working two jobs?

✅What is secondary employment?
An employee may choose to take on two jobs for financial reasons to help cover the cost of everyday expenses or a one-off event. Employees may also take on additional jobs to learn new skills and gain experience.

✅What are the practical implications?
Conflict of interest, for example, your employee starts working for a competitor at the same time as you. If an employee is working two jobs they may harm their well-being by working long or excessive hours. This will most likely impact on their performance and engagement.

✅What are the legal implications?
Health and safety risks with working excessive hours, if you are tired you are more likely to make mistakes or cause accidents. Employees may be working more than the maximum weekly working time limit and not getting the required rest breaks under the Working Time Regulations 1998.

By law, most workers are not permitted to undertake more than an average of 48 hours a week, normally averaged over 17 weeks, unless they have opted out of these provisions in writing.

✅Employee rights
It is not illegal to have two jobs in the UK. This means without the correct contractual terms in the contract of employment, the employee is free to undertake a second role.

✅Employer rights and best practice for managing second jobs
Employers can use non-compete clauses to restrict employees from working for competitors or a similar business during employment. If the Contract of Employment expressly prohibits this act and the employer finds evidence an employee is working for a competitor, then investigation and disciplinary proceedings may be appropriate.

Typically, employers will not prohibit reasonable secondary employment however, it’s a good idea to have a contractual clause that requires the employee to notify the employer in writing when they have a second job. The employer should have an open culture so employees feel comfortable talking about other work. Monitor the average working hours of employees with second jobs ensuring adequate rest periods.

Are you aware of the recent reforms to the Rehabilitation of Offenders Act 1974? On 28 October 2023, the act was amended to reduce the amount of time people with criminal convictions are legally required to declare them to employers.

🔸Why has the act been reformed?
Prior to the reform, some offenders were required to disclose their sentences for the rest of their lives. These are often referred to as ‘spent convictions’. On balance, this was considered unfair to those individuals who committed offences in their youth, had received a custodial sentence and had not re-offended. This placed them at a disadvantage when looking for skilled roles.

🔸What has/hasn't changed?
Convictions for serious sexual, violent or terrorist offences continue to never be treated as spent convictions and will remain live convictions for life.

Prior to the changes, sentences of four years or more were never spent and had to be declared (if a DBS Check is required as part of the recruitment process). However, now a custodial sentence of four years will be deemed spent after seven years, provided there has been no re-offending.

If you employ individuals to work with vulnerable people and standard/enhanced DBS checks are required, strict disclosure rules will still apply.

For a full list of the changes to rehabilitation periods, see the Government website.

🔸What does this mean for employers?
Unless you employ individuals in roles that are exceptions under The Rehabilitation of Offenders Act 1974 (Exceptions) 1975, you should not dismiss any existing employees for not disclosing a ‘spent’ criminal conviction.

Relying on an employee failing to disclose a spent conviction as grounds for dismissal may lead to a claim for unfair dismissal, provided the employee has a qualifying period of two years continuous service.

Top Tips for Managing Workplace Fireworks

🎆 Fireworks in the workplace can often be unavoidable when people are working closely, owing to the workforce's varying personalities and life experiences. Consider implementing steps to support a culture of collaboration and mutual problem-solving.

• Communicate expectations 🙋
Communicate regularly with your workforce. Regular updates and reminders around expectations and company values can effectively promote and remind employees of the rules around behaviour and company boundaries.

• If you spot a concern, address it 🤔
Don’t avoid difficult conversations. Ignoring the problem can promote it, not prevent it. Managers should catch up with their team through regular and informal 1:1 meetings to give more opportunities to discuss issues before they escalate.

• Respect other's beliefs 🙌
The media has recently highlighted a few cases whereby contrasting beliefs have become a cause for concern within the workplace. Management's understanding of different beliefs, cultures and life experiences is key to ensuring empathy in the workplace.

• What is written down? 📝
If a dispute has occurred, check if you have any policies on reviewing workplace disagreements. Equally important, but often overlooked, is to ensure management are coached and trained on how to apply these policies.

• Conflict 😤
Often, concerns that are left unmanaged can lead to conflict, grievances and/or allegations of bullying and harassment. These are timely and costly to resolve. Having the skills to mediate these can prevent escalation. We have a qualified in-house Mediator who can assist. Alternatively, our training team run a course on ‘How to Resolve Workplace Conflict’ that covers the key processes in dispute management.

5 tips to manage your staff during the severe weather and floods
Storm Babet has greatly affected the East Midlands this week from flooding, evacuations, damage, and travel disruption.

Here are 5 tips to help manage your staff and business during these times:

1. Safety first
The priority is to follow the advice of your local authority and the emergency services. Encourage your staff to act safely and only travel or work if it is safe to do so. Conduct a risk assessment of your working arrangements and review any continuity plans you have.

2. Check your policies
Some businesses have adverse weather policies which may give guidance for: travelling to work, alternative working arrangements, absence and pay. If you don’t have a policy, consider how you have handled similar situations, such as heavy snow. In terms of pay, if you can’t open your workplace and homeworking is not possible, then usually staff are still entitled to pay.

3. Support your staff
Allow remote and home working where possible. Flexible hours are also advised to avoid travel during busy periods. Consider sending staff home early, reducing travel and swapping meetings to online. If staff can’t work, consider TOIL or holidays to cover the time. If you have an EAP service, encourage staff to utilise this for dealing with the impact of the extreme situation.

4. Communication
Keep open and consistent communication with your staff. Let them know about the situation, any safety measures, and evacuation procedures if applicable. Ensure your contact records are up to date and staff are aware of how to contact you.

5. Plan for the future
If your business has been affected, its wise to plan for further disruptions. Develop a business continuity plan by analysing the potential risks to the business, their likely effects and formulate a strategy to combat them.

We are sorry to read of so many affected by this situation. If we can assist your business or if you have further questions, please let us know.

Come join us for a spooktacular event:

Tuesday, October 31st
Performance Management in a Day.
REACH events, Derby

Leave behind the haunting spectre of missed performance conversations, and instead, let us guide you through the intricacies of these discussions. We'll provide a step-by-step approach, shedding light on what to do and, equally important, what not to do.

In addition to this, we'll cover topics like managing probationary periods, setting objectives, and the crucial task of performance reviews. We understand that handling underperformance and the capability process can be challenging, so we'll equip you with the knowledge and skills to address these issues effectively.

No need for costumes or pumpkin carvings; this event is all about professional growth and development. If you're looking to enhance your performance management skills and gain valuable insights, then this is the perfect opportunity.

This project is funded by the UK Government through the UK Shared Prosperity Fund (UKSPF) in partnership with East Midlands Chamber. To be eligible to attend this event you must be a business based in an eligible UKSPF area.

5 Tips for using AI in HR

The use of Artificial Intelligence (AI) is on the rise, becoming a popular tool in many areas of business, including HR. Unfortunately legislation is not progressing as quickly and there are some risks to be wary of. Here are 5 tips to support safe use of AI in the workplace:

1. Don’t assume AI is correct
Some AI is not up to date with current law, or provides you with law which doesn’t apply to the UK. AI is keen to please you so if it can’t give you an answer, it has been known to make things up. Therefore, only ask what you already know or fact check what it tells you.

2. AI is even less reliable with numbers
Due to the way AI is coded, one incorrect answer can interfere with the whole algorithm, giving incorrect answers to even the simplest maths questions. Therefore, avoid using AI for processing HR data, such as the Bradford Factor.

3. AI is only as good as the data in it
There are many examples of AI providing discriminatory information or answering with a bias. For example, only shortlisting men in a recruitment task. Therefore, be alive to these risks and challenge its output with an impartial mind.

4. AI is not responsible for what it produces
If your staff are using AI, you are responsible for how it is used. If it is used incorrectly, you would be liable for any issues, such as claims. Therefore, ensure staff are trained on how to use AI for their roles and aware of the risks. Some companies have banned the use altogether.

5. AI is not confidential
There are known instances of confidentiality and data breaches from AI use. Therefore, ensure any data inputted to AI is anonymous, have an AI policy and cover AI in your privacy notices.

Hope you found that useful -

A key element of the Data Protection Law is an individual’s right to make a data subject access request (DSAR). As an employer, would you know how to respond to a DSAR from an employee?

✅Summary of Individual DSAR Rights

An employee has the right to obtain confirmation of what personal data is processed and a copy of the data. Personal data, under GDPR, is any data or piece of information that can be used to identify a person.

An employee also needs to know the purpose, period, where the data was obtained, the type of data, the data retention period, and information about their GDPR rights. If an employee asks for a copy of their data, this must be provided free of charge.

✅Responding to the request

DSARs are frequently made in an employment setting for ongoing disputes and tribunal claims, but individuals do not need a specific reason to make a DSAR. Employers should approach requests positively and helpfully.

Who is asking?
Verify the identity of the person making the request.

Who should complete the request?
The Data Protection Officer (DPO) of your organisation. If you are not required to have a DPO, then it should be the person in charge of compliance.

When?
Ensure your compliance with timeframes. In most circumstances, the employer must provide the information within one month of the request (in some cases, two months can be requested).

What to include and in what format?
If specific personal data is requested, provide only the relevant information. Though in some cases an employee may request to see all the data you hold about them, you should audit the information you process on the employee that is considered personal data under GDPR. Once you have collected and prepared the data, ensure you use an appropriate and secure format to provide the information.

Can information be redacted?
Employers can redact anything that is not within the scope of the DSAR, for example, sensitive data about your company or data about other employees.

Our mental health first aider adult training is one of our most popular programmes.
And we also now run regular MHFA refresher training.

Why are we different to other providers? Well, we make it flexible to work around you and your commitments.

Online or face-to-face, we also deliver over split weeks to avoid the need to take two consecutive days away from the day job.

Here is some feedback from a recent delegate.

Did you know we also support SMEs with HR recruitment?

We specialise in those businesses that have grown to warrant their first in-house HR person.

Typically, we will have worked alongside the client, supporting them externally with their HR requirements. The upside is we understand their business, their culture and what type of HR person the role will suit.

We assess for person-organisation fit and are chuffed with our 100% track record of successful appointments.

This is what one of our clients said.

Recognition means a lot to some.

This week, I am celebrating different team members and sharing some fabulous feedback they have received.

Next up, we have our fantastic management training team.

Annie and Tayla design and deliver outstanding content, typically aimed at team leader development and/or management skills training.

We pride ourselves on tailoring the training to the client; our latest testimonial provides insight into how we go about this.

Recognition.

Something that many employers often overlook, but to some people, it is a big deal.

This week, I will share some of our client's comments about the team.

In a world where it can be pretty stressful and challenging, every little bit of feedback helps.

We share all the client testimonials with the team, which invariably results in an email chain of good job! to celebrate the team member's success.

How do you celebrate success?

Drug and alcohol misuse in the workplace
Substance misuse can have serious consequences for both employees and the organisation, so it's important to address it proactively but fairly. Here are some tips to help you handle this issue:

1. Investigate it
If you suspect someone is under the influence, don’t jump to conclusions. Investigate it, observe the individual and document any concerns such as changing or unsafe behaviours. If you are still concerned, speak to the individual objectively before considering formal action.

2. Review and follow your documentation
Check your contracts and policies on drugs and alcohol. This should cover: searching staff property, testing, suspension, reporting concerns of misuse, what support you offer and when to commence disciplinary action. This will ensure you have a consistent and fair approach. If you work in a health and safety critical environment, it’s important to implement a substance misuse policy.

3. Offer support
If the individual is struggling with substance misuse, you can provide them with information about available resources for seeking help, such as addiction counselling or treatment programmes. You can encourage them to seek help. However, it is not your place to diagnose any conditions or addictions.

4. Raising awareness
Conduct regular training sessions to educate your employees about the risks of substance misuse, the impact on their health, work performance, and the overall work environment. This can help reduce stigma and encourage early intervention.

5. Data protection
Remember that test results or requests for substance misuse support are sensitive personal data and must be handled confidentially and in line with GDPR.

If you need any assistance with this, let us know.

Fixed term contracts

Fixed term contracts can be a useful employment tool, however they need to be managed correctly to reduce any risk and ensure a positive relationship with the employee. Here are five tips to help you manage fixed-term contracts:

1. What’s your reason?
Be clear why you need a fixed term contract and ensure the individual understands too. This will help to meet expectations later on. The most common reason is maternity cover, however it may be an interim position whilst you recruit or to fulfil a specific project.

2. Confirm it in writing
Staff on fixed term contracts need special terms and conditions. Their contracts need a start date, expiry date and specific notice arrangements. It helps if there is a provision to end the agreement early, for example if the maternity leave or project ends sooner than expected.

3. They aren’t infinite
Fixed term contracts can’t be continually extended. If they last beyond two years, the individual accrues redundancy rights. If they last beyond 4 years, the fixed term element becomes void and the individual is deemed permanent.

4. Plan the departure
Diarise the expiry date so you can plan and meet expectations. This may include serving notice in good time to end the contract, extending the contract or offering a new permanent contract. If the latter, their length of service may continue.

5. No less favourable treatment
Staff on fixed term contracts cannot experience detriment (such as being dismissed or bullied) because they are on a fixed term contract. Treat them the same as their permanent comparator (someone who does the same or similar work). This means fixed term roles must have the same benefits, service related conditions (like pay scales) and training. Fixed term individuals should be informed about any permanent job opportunities.

5 tips for handling employee resignations
Employee resignations are an inevitable part of running a business. Effective management of resignations helps ensure a smooth handover, maintain positive relationships and protects you legally. Here are 5 top tips to consider:

1. Identify any risk
Explore the reason for someone leaving in case they are considering raising a claim. Any concerns raised in a verbal or written resignation should be addressed and investigated if applicable. It’s useful to conduct an exit interview to gain insights into their reasons for leaving and receive general feedback on the organisation.

2. Knee jerk resignations
Sometimes an employee resigns as a reaction to an incident or argument. You should be flexible with them, giving them time to consider their decision and give the opportunity to retract their notice.

3. Giving Notice
An employee needs to give the notice governed in their contract (or by statutory law if it is greater than their contractual notice). Therefore, check their documentation and write to the employee confirming their final day of employment.

4. Fulfilling the notice
If an employee wants to leave immediately or refuses to work their notice, sometimes it is counter productive to force them to stay. Instead you may wish to consider garden leave, payment in lieu of notice or to claim damages for any costs you have incurred as a result of them leaving early. However, check the contract before enforcing any of these arrangements.

5. Leaver arrangements
There are many things to consider before someone leaves. This includes handover of work, paying holidays accrued but not used, returning property and confirming the resignation in writing. You may wish to remind the employee of any obligations that remain after they leave, such as confidentiality restraints or restrictive covenants. Respectfully update relevant colleagues and stakeholders of their departure.

If you need any more support on this topic, give us a shout

In 2022, insurance company Royal London conducted a survey of 4,000 UK workers, finding that 16% of respondents had taken on a second job to help pay for the cost-of-living increases. Anecdotally known as a ‘side hustle’, employees choosing to earn extra income via additional employment has implications for their primary employer. But what does this mean from a legal standpoint?

🌟 Consider their contract
Legally, there is nothing to stop an employee from having a second job. Often, employers have a clause within the contract requiring employees to make them aware of a second role. Managers should discuss what the second job entails and whether there is a risk to the business; they should also enquire about hours of work and what impact this may have on the employee.

🌟 Manage conflict of interest
The employer should then consider any conflict of interest for their business; for example, If the employee's second job is in a similar industry or involves a competing organisation, it may raise concerns about loyalty, confidentiality, or potential misuse of company resources. This conflict could affect trust and the employee's commitment to their primary employer.

🌟 Review performance
If a staff member is working two jobs, there is also the genuine and obvious risk that this could negatively impact performance. For example, when staff are overworked and tired from working long hours, this can quickly affect employee engagement and productivity.

🌟 Understand regulations
Where an employee has more than one job, all of the employers involved are responsible for ensuring that the employee does not work beyond the maximum weekly working time limit (more than 48 hours per week). Employers can request employees to opt-out from this to mitigate the risk. However, under the 1998 Working Time Regulations, there are also strict rules around daily and weekly rest breaks, where workers have the right to 11 consecutive hours of rest between shifts, which workers can not opt-out from.

🌟 Conduct risk assessments
Employers also have a responsibility to protect the health and safety of all staff and to make sure that their working hours do not pose a risk to themselves or others. If concerns are raised, the employer must take reasonable steps to remove these risks, which could include, where reasonable, requiring an employee to stop working their second job or to reduce their working hours.

TUPE
With the current financial climate, mergers and acquisitions are becoming more frequent. I am advising a number of clients on TUPE (Transfer of Undertakings (Protection of Employment)), the law which outlines employee rights and employer obligations when staff transfer to another employer.

The law is complex and you should always seek advice, however here are 5 tips to get you started:

1. Does TUPE apply?
The starting point is to know if the TUPE law applies. The law generally covers the transfer of a business or service from one employer to another, either through a business sale, outsourcing, or a change in service provider. However, there are similar situations when the law does not apply.

2. Make a plan
Proper planning is essential to ensure a smooth transition during a TUPE transfer. Identify key tasks, such as employee information exchange, plan key announcements and the consultation process. There is often a lot of paperwork to organise such as collecting data, letters, agreements and contracts.

3. Communicate and consult
Employees must be informed about the transfer and how it may affect them. You will need to consult about any changes to their employment (see pt 4). You may need to liaise with trade unions. It is a long process so provide ongoing, clear and timely communication regarding the transfer.

4. Avoid making any changes to staff employment
If staff are transferring to you, you can’t easily change their terms. This includes harmonising their terms to match your current staff. You need a really good legal reason to make any changes and the criteria is hard to hit. You must consult with staff about any changes.

5. Avoid dismissals
Transferring staff are protected from dismissal, this covers redundancies and resignations in response to the transfer. Endeavour to transfer all the affected staff and avoid substantial changes to their working conditions.

TUPE is a complex legal area, and seeking legal advice or guidance is advisable to ensure compliance and mitigate any risks during a transfer.

5 Tips for Managing a Grievance
Staff have the right to raise complaints about the workplace. As the employer, you must deal with any complaints concerns, and problems to do with their employment fairly and consistently. Here are some general steps you can follow:

1. Listen to the grievance:
Allow the person to express their complaint or concern and ensure they feel heard. Clarify exactly what their concern is, and how they’d like it resolving. Check your grievance policy – which you are legally required to have in place - on the best approach to do this. You may be able to have an informal meeting as opposed to a formal meeting which includes a scheduled grievance hearing and the employee’s right to be accompanied.

2. Investigate and analyse:
After you’ve spoken with the employee, gather all relevant information. This may involve speaking with witnesses and reviewing evidence such as documents, policies and emails. Remember to investigate impartially and in a timely manner.

3. Reach an outcome:
Review the information and determine if there is a legitimate grievance or if there is a misunderstanding that can be resolved through clarification. Confirm the outcome in writing to the employee and outline their right to appeal this decision. Endeavour to make recommendations regardless of whether the concerns are supported or not. This may involve mediation between affected staff, taking corrective action or making changes to policies or procedures.

4. Follow up:
Monitor the situation to ensure that any recommendations are implemented and that the grievance is fully resolved. If the grievance was unfounded, still check in with the employee and offer support.

5. Moving forwards:
It is best to have regular 1-2-1 discussions with staff to encourage open communication and opportunities to raise concerns. This can help you address matters before they escalate. It’s important to note that some complaints are not labelled as grievances so may be less obvious. Therefore make sure you explore any issues raised.

If you need any help with a grievance - give the team a shout.