SCE solicitors opened our well-being room on the 10th October 2019 and invited in Shot Blast Media to create our video. We would like to share with you all the finished product and especially for those who could not make it on the day.
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JunHow Do Employers Juggle Working Parents?
As the school holidays approach, working parents cross their fingers that their childcare plans hold. In this article I look at what employers need to consider when it comes to flexibility for working parents.
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JanChanging from Employee to Consultant: pitfalls to avoid
Changing an individual’s working arrangements from employee to consultant may seem attractive; no employer National Insurance contributions to pay and greater flexibility for the individual. A win-win situation surely?
Samira Cakali, employment law expert, explains why this can be a risky course of action for the employer and looks at ways to minimise the risks.
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DecContracts of employment: common errors and how to avoid them
Tempting though it might be to dish out the same contract of employment for new starters year after year, putting a little time into preparing your contracts could pay dividends in the longer term. Should you fall out with an employee, a clearly-worded contract that is fit for purpose for that individual and up-to-date can go a long way towards protecting your business.
Here are some some common mistakes and how to avoid them, as well as a couple of changes to watch out for from April 2020.
We can be a bit slow issuing contracts
You need to ensure that every employee who works for you for at least one month receives a statement of particulars setting out key terms such as pay, hours and place of work. You have to give this to the employee within two months of their start date. If you do not, an employee may be able to claim two to four weeks’ pay (subject to the statutory cap) from you. Even if their employment ends before two months have passed, as the Employment Appeal Tribunal recently confirmed in Stefanko and others v Maritime Hotels Ltd, you are still required to provide the statement of particulars.
From 6 April 2020, you will need to issue the statement of particulars on or before their first day to all workers, as well as employees. The rules will require more information to be included than is currently required.
New starters do not always return their signed contract
Time-consuming though it might be, always make sure you have a signed copy of the most recent version of the contract on file. In the recent High Court case of Tenon FM v Cawley, the employer tried unsuccessfully to enforce restrictive covenants against its Operations Director to stop her poaching a colleague to come to work with her at a competitor. The employer could not provide the High Court with a signed copy of the contract which included these covenants, and so could not convince the High Court that the Operations Director was bound by these terms.
An offer letter may not exactly match the contract terms
Make sure the offer letter and any terms agreed verbally with the prospective employee are reflected in the contract. Ensure that this information is passed on to the person who prepares the contracts. This avoids disputes over which is binding and getting off to a bad start with an employee who is disappointed if the contract is less generous than the offer.
The odd administrative error in contracts
While a court or tribunal is very unlikely to agree with an employee that they should be paid £180,000 instead of £18,000 due to a blatant typo in the contract, generally the rules are strict on when you can correct a mistake. If you spot an error, we can advise on how best to deal with it. Careful checking of each draft contract is really important.
We do not want our contracts to sound too ‘lawyerly’
Some employers shy away from sounding overly formal, but a ‘chatty’ style may not have the same legal clarity. For example, ‘you may be asked to travel to other sites’ is not as clear as ‘you are required to travel to other sites.’
Our contracts do not give us much flexibility
Changing contractual terms can be difficult. To help your business’s resilience, it is important to include flexibility in the contract to cope with changes in business. Typical flexibility terms allow you to change your employees’ work base, duties or to require them to work extra hours. However, these need to be used with care.
Believing you can use your flexibility clauses however you like
Even though a contract can give you the right to change an employee’s work base or hours, you have to exercise these rights reasonably. This may mean giving the employee reasonable notice of the changes and taking into account their individual circumstances. Bear in mind the risk of discrimination, for example if the changes have a negative impact on a female employee’s childcare responsibilities or a longer commute causes difficulties for a disabled employee.
We tend to use fixed term contracts to give us flexibility
Although we see them being used less frequently, some employers still do not realise that ending an employee’s employment at the end of a fixed term contract is the same as dismissing an employee. Depending on the reason for ending the fixed term contract and their length of service, the employee may be able to bring a claim for unfair dismissal.
We can advise you on when it is safe to use fixed term contracts. If you do use fixed term contracts, make sure you include a notice period allowing you to end the contract early, in case things do not work out as planned.
We significantly restrict what an employee can do after leaving us
Many businesses understandably try to protect their know-how, confidential information, staff and client relationships by including restrictive covenants in contracts of employment. For instance, these could stop an ex-employee working for a local competitor and contacting your clients. Although it may seem sensible for the scope of these to be as wide as possible, courts will only enforce them if they are strictly necessary to protect your legitimate business interests. Appropriate wording is crucial. We can help you get the wording right and ensure that these are binding.
We have not reviewed our contracts for a while
Whatever is written in your contracts, statute will always override the wording in the contract. It is worth checking that your contracts are compliant with the latest laws. Relevant law includes the entitlement to minimum notice periods, restrictions on working time, the right to ‘blow the whistle’ and the rules on holiday entitlement. Contracts should also have been updated since May 2018 following the changes to data protection law.
The government recently consulted on the use of confidentiality clauses (also known as non-disclosure agreements). We will keep an eye out for any new rules introduced following this.
Check also that your contract is still fit for purpose in light of the changing ways of working, such as homeworking and increased use of social media.
If you need help ensuring that your contracts are up to date and fit for purpose, please do not hesitate to contact us on 0113 350 4030 or at hello@scesolicitors.co.uk.
If you have enjoyed this article and would like to be kept updated on HR and Employment Law issues please subscribe to our monthly newsletter.
SCE Solicitors is a boutique employment law and litigation practice based in Leeds which advises clients nationwide. Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.
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DecDismissing An Employee With A Disability
Work related stress translating to long term absence is growing and the impact to business’ is significant. So, when it comes to dismissing an employee due to ill health it can be tricky if it is to do with a potential protected characteristic in accordance with the Equality Act 2010.
Dismissal For Sickness
Case Study
The company is not happy with the performance of an employee who has only 9 months service and in addition has been off sick with stress and depression. The company wishes to dismiss the employee, as they have less than 2 years’ service and the employee cannot bring an unfair dismissal claim. Is the company ok to dismiss?
The answer is not a clear yes or no, the employee may have a protected characteristic under the Equality Act 2010, and they may have a claim for disability discrimination.
Equality Act 2010
So, how is a disability defined?
According to the Equality Act, a person has a disability if:
- they have a physical or mental impairment
- the impairment has a substantial and long-term adverse effect on their ability to perform normal day-to-day activities
What does ‘substantial’, ‘long term’ and ‘day to day’ mean?
- ‘substantial’ means more than minor or trivial, for example it takes much longer than it usually would to complete a daily task like getting dressed
- ‘long-term’ means that the effect of the impairment has lasted or is likely to last for at least twelve months
- ‘normal day-to-day activities’ include everyday things like eating, washing, walking and going shopping
There has been a recent tribunal case, Parnaby v Leicester City Council where an employee was impaired by depression caused by work related stress. The tribunal ruled that he did not fit the definition of a disability. They said that his condition didn’t last over 12 months. The Claimant appealed and the EAT overruled the decision and said the tribunal should have considered whether the impairment was likely to last 12 months or whether it might recur in the future. The tribunal made the assumption that removing the work-related stress by dismissing the employee, this would remove the impairment.
This judgement helps to clarify that the whole definition of a disability would have to be considered when making decisions on an employee’s employment.
Termination Of Contract
So, when considering a termination of contract for an employee who has a disability, employers should ask the following clarifying questions:
- Does the person have a physical or mental impairment?
- Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?
- Is that effect substantial?
- Is that effect long-term and the person would be affected in the future?
Medical practitioners can help you answer some of these questions, and if there is any doubt that the condition is a true disability, then other alternatives to dismissal would need to be considered. For example, reasonable adjustments or alternative employment. If none of these options are viable, then termination could be possible under incapacity.
The process however is not straightforward, and we would encourage you to seek advice prior to taking action in such cases.
If you need help and advice managing an employee who has a disability, please do not hesitate to contact us on 0113 350 4030 or at hello@scesolicitors.co.uk.
If you have enjoyed this article and would like to be kept updated on HR and Employment Law issues please subscribe to our monthly newsletter.
SCE Solicitors is a boutique employment law and litigation practice based in Leeds which advises clients nationwide. Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.
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NovWorkplace Banter
Much can be gained in having a relaxed work place environment where employees can talk and express opinions freely to each other however with workplace banter there is a very fine line which can easily be crossed and turn banter into unlawful bullying and harassment even if the purpose was not to cause offence.
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NovMenopause: How To Support Women In The Workplace
In this article we explore how menopause affects women in the workplace and what you can do to help shake the stigma.
What Is The Menopause?
The menopause is a natural part of the female life cycle. It usually happens between the ages of 45 and 55, as a woman’s oestrogen levels decline, and she stops having periods.
In the UK, the average age a woman reaches menopause is 51, but around one in 100 women experience the menopause before the age of 40.
The length of the menopause also varies. Symptoms typically last around four years, but around one in 10 women experience them for up to as much as 12 years.
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NovHealthy Staff Equals A Healthy Business
Instead of moving around the workplace we now seem to be tied to a desk or staring at a computer screen, and it’s having an adverse effect. So, what are the benefits to your employees and to your business if you have a healthy workforce?
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OctThe Role Of A Mental Health First Aider
It is beneficial to have a Mental Health First Aider to help those affected by poor mental health. Mental health issues are as much of a priority as physical ill health.
Take a look at the day to day role of a Mental Health First Aider in the workplace.
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OctSCE Solicitors Welcomes you to our new Well-Being Room
This year on Mental Health Awareness Day (10 October19), we marked the occasion by launching our new Wellbeing Room. The purpose of this room is to provide a getaway from the hustle and bustle of the working day. The room is painted in pastel colours and features candles and reed diffusers for visitors and colleagues to relax with aromatherapy. There are also soft furnishings to wind down on whilst listening to soothing music. Or alternatively, games and jigsaws are available to provide mental stimulus.
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OctStress At Work
In this article, we will look at what amounts to stress at work, how stress shows in an employee, why employers should take steps to prevent stress and what can be done to help prevent stress.
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