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24 04 2024

Low Pay Commission starts work on recommendation for 2025 minimum wage | Consensus HR in Herts, Beds

Matthew Chilcott Blog, General, Payrol #2025, #consensus hr, #consensushr, #hertfordshirebusinesses, #minimumwage, #outsourcedemploymentlaw, #outsourcedhumanresources, #outsourcing, #PWC #outsourcedHR, bedfordshire, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

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The Low Pay Commission (LPC), the independent body which advises the Government on the levels of the National Minimum Wage (NMW), including the National Living Wage (NLW), has launched a call for evidence to inform its advice to the Government on the minimum wage in 2025 and beyond.

With full details available on the GOV.UK website, it is seeking input to shape the recommendations which it will make to the Government this autumn, on minimum wage rates to apply from April next year.

The deadline for submitting evidence is 7 June 2024.

The Department for Business and Trade (DBT) has published a new remit for the LPC which can be found here.

This asks the Commission to recommend an NLW rate for April 2025 “to maintain the bite at two-thirds of median earnings and protect progress made to end low hourly pay for this group, without recommending any further revisions to the age threshold”.

The LPC estimates that the rate required to meet this aim is within the range of £11.61 and £12.18, with a central estimate of £11.89.

The Government also asks the LPC to monitor and evaluate the levels of each of the different NMW rates (under-18 and 18–20 age groups and apprentice rate) and make recommendations on the increases it believes should apply from April 2025, such that the rates are set as high as possible without damaging the employment prospects of each group.

The TUC has criticised the Government for its decision to “tie the hands” of the LPC.

General Secretary, Paul Nowak, said: “Keeping the minimum wage at two-thirds of median earnings will deliver a paltry increase of just 15 pence next year — based on the latest forecasts. Ministers should be instructing the LPC to aim for 75% of median pay. This would help deliver a £15 an hour minimum wage and make work pay for millions.”

Low Pay Commission starts work on recommendation for 2025 minimum wage | Consensus HR in Herts, Beds

Our HR comment:

Our HR Comment / Advice – Low Pay Commission starts work on recommendation for 2025 minimum wage | Consensus HR in Herts, Beds

Matthew Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: “With the most recent pay rate increases happening at the beginning of this month with on average £1 per hour extra, it is interesting to see that that the low pay commission are starting to work on the rates for 2025. This article from HR inform gives some useful links to Government websites where further information can be found. We have written a number of previous blogs on minimum wage which can be found by clicking on the relevant title below:

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At Consensus HR, we ensure that our clients do not make assumptions when it comes to the performance / abilities of team members and that if identified, we seek the member of teams consent to write to a relevant medical professional to obtain support and advice and any reasonable adjustments needed to ensure what is possible is provided. If you manage a team / business and find it hard to keep on top of changing Employment Law and best practice and wish you could outsource it to a HR Charity for a small monthly investment, give us a call now for a non-obligatory conversation. Consensus HR | Your Outsourced Human Resources and Employment Law Department. | “Helping companies take the pain out of managing people whilst Preventing People Problems – 01438 576750.

16 04 2024

Stress Awareness Month | Consensus HR in Herts, Beds

Matthew Chilcott Blog, General, Health & Safety #bedfordshirebusiness, #consensus hr, #consensushr, #Health&Safety, #hertfordshirebusinesses, #outsourcedemploymentlaw, #outsourcedhumanresources, #stress, #stressatwork, Business, Business Owners, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

Latest blog: Stress Awareness Month: NEBOSH and CIPD join HSE’s Working Minds campaign

Further to our blog written earlier this month, the Health & Safety Executive (HSE) have published an excellent article which can be seen below with a range of useful tools for business owners to ensure they and their teams are working to current Health & Safety Law / best practice. Our Chartered Institute of Personnel & Development (CIPD) which we are fully accredited to, have also recently become partners as outlined below:

April is stress awareness month and HSE is urging employers to prevent and reduce stress in their workplace.

HSE’s Working Minds campaign brings together a range of tools and support to help businesses. These include:

free online learning
talking toolkits
risk assessment templates and examples

Stress Awareness Month | Consensus HR in Herts, Beds

The Chartered Institute of Personnnel and Development (CIPD) and The National Examination Board in Occupational Safety and Health (NEBOSH) are the latest organisations to join as campaign partners, taking the total number of supporters to more than 30.

HSE and NEBOSH have also jointly developed the NEBOSH HSE Certificate in Managing Stress at Work. This one-day qualification is aimed at helping you and your organisation identify and reduce workplace stressors in order to create a positive, healthier workplace.

To view more about our range of HR, Employment Law & Health & Safety Services.

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Are you concerned about keeping your business up to date with Health & Safety changes?

At Consensus HR, we ensure that our clients do not make assumptions when it comes to Health & Safety and through working with our partner, provide a fulll range of Health & Safety for our clients. If you manage a team / business and find it hard to keep on top of Health & Safety and best practice and wish you could outsource it to a HR Charity for a small monthly investment, give us a call now for a non-obligatory conversation. Consensus HR | Your Outsourced Human Resources and Employment Law Department. | “Helping companies take the pain out of managing people whilst Preventing People Problems – 01438 576750.

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15 04 2024

When Workplace Banter Becomes Bullying | Consensus HR in Herts, Beds

Matthew Chilcott Blog, Employment Law, General, Health & Safety #bedfordshirebusinesses, #bullying, #consensus hr, #consensushr, #hertfordshirebusinesses, #outsourcedemploymentlaw, #outsourcedhumanresources, Business, Business Owners, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

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Workplace bullying disguised as banter has affected 32% of people in the UK. This is a worrying fact arising from research by law firm Irwin Mitchell, 2023.

Words that one person finds funny can cause offence to someone else. Workplace banter is a sensitive area that’s involved with an increasing number of employment tribunal cases. In 2022, 66 claims were made, including comments which could be considered bullying or harassment.

Employers must take this seriously. In 2023, an employment tribunal heard from Miss Hunter who was employed by Lidl from 5 February 2019 to 23 August 2021.

Just because an employee has a protected characteristic, this doesn’t mean that everything that happens to them in the workplace is because of that characteristic.

When Workplace Banter Becomes Bullying | Consensus HR in Herts, Beds

Miss Hunter brought claims for direct sex discrimination, harassment, equal pay, constructive unfair dismissal and unlawful deduction of wages. She claimed that a colleague:

initiated conversations in an attempt to discuss her love/sex life,
regularly touched on the bum, thighs, waist, and
frequently attempted to hug her.

This was despite making it clear that this was unwanted attention and should stop. The behaviour only stopped because another colleague witnessed this and told the person to stop.

In addition to receiving this harassment, Miss Hunter was placed on the wrong salary band when promoted to a shift manager role on 1 August 2020. This meant she received lower earnings than two male shift manager colleagues. Also, her pay was automatically deducted although she did take the (unpaid) breaks she was entitled to.

The Employment Tribunal found in Miss Hunter’s favour awarding her £50,884, inclusive of £22,000 award for injury to feelings.

Other recent Employment Tribunal cases include:

A manager being called a homophobic name.
An Indian employee being called a “cheeky monkey” during a round of golf.
A female employee being called “menopausal” and a “dinosaur”.
An insinuation that an employee must be gay because they don’t like football.

In each case, banter was used unsuccessfully as a defence (HR Magazine).

‘Banter is often used as an excuse to cover up poor attitudes and behaviours,’ says Matthew Chilcott of Consensus HR. ‘What may seem like harmless fun may cause upset. Ultimately, if you had to explain the comment and humour involved, would it seem fair and innocent?’

If it is proven that one of the protected characteristics is discriminated against, compensation awards can be:

an unlimited amount, and
applied from the person’s first day of employment with the company involved.

When is workplace banter ok?

Lawyers GQ|Littler explain that there are circumstances when “banter’ can be used as a justification. These are when:

the conduct wasn’t unwanted, i.e. if the employee also engaged in similar behaviour and jokes,
the behaviour was not connected to a protected characteristic (see above), and
the employee wasn’t offended by the conduct, or it wasn’t reasonable for them to have been offended.

‘Employers should introduce clear policies, communication and staff training to ensure their workplace offers respect and equality for all employees,’ explains Matthew. ‘This doesn’t mean the end of workplace humour though! People should just avoid jokes that may cause offence, especially those relating to protected characteristics.’

Consensus HR offers a range of services to ensure your company complies with employment law and offers robust, fair HR policies. To find out more and ensure you are a fair, inclusive employer, arrange an initial chat with Matthew, without obligation or HR jargon.

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09 04 2024

Deutsche Bank to provide menopause pods in London office | Consensus HR | Herts, Beds, UK

Matthew Chilcott Blog, Employment Law, General, Health & Safety, Training & Development #bedfordshirebusinesses, #consensus hr, #consensushr, #employmentlaw, #hertfordshirebusinesses, #outsourcedhumanresources, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, menopause, outsourcedHR, Small Business, SME, SME's, stevenage

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Deutsche Bank to provide menopause pods in London office | Consensus HR | Herts, Beds, UK

Deutsche Bank is set to introduce “reset and recovery pods” in its new London office to support menopausal women. The private booths will feature reclinable chairs and temperature controls to help alleviate symptoms such as hot flushes and migraines. The pods are part of Deutsche Bank’s new wellness suite, which will also include physiotherapy facilities, GP clinics, a mindfulness space, and a multifaith prayer room. The move comes after London headquartered law firm Shoosmiths announced plans to introduce similar “wellness rooms” for menopausal women in its offices. The rooms, which were first introduced in Shoosmiths’ Birmingham office, feature temperature controls, light boxes, and beds for employees to lie down. The introduction of these spaces follows new guidance from the UK’s Equality and Human Rights Commission, which states that menopause symptoms can be considered a disability in the workplace. Employers could face legal action if they do not make reasonable adjustments to support menopausal women.

Daily Telegraph

Our HR comment:

Deutsche Bank to provide menopause pods in London office | Consensus HR | Herts, Beds, UK

Matthew Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: “This is a subject we have written many blogs on in the past and is interesting to see how this employer is supporting wellness for its team in the workplace. Some of our previous blogs can be seen here:”

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08 04 2024

April is Stress Awareness Month: tackle stress in the workplace with five steps in five weeks | Consensus HR | Herts, Beds, UK

Matthew Chilcott Blog, General, Health & Safety #bedfordshirebusiness, #bedfordshirebusinesses, #consensus hr, #consensushr, #outsourcedemploymentlaw, #outsourcedhumanresources, #stress, #stressatwork, Business, Business Owners, HR, HR Advice, HR Consultant, HR Consultants, HR Support, Small Business, SME, SME's, stevenage

Did you know? April is Stress Awareness Month:

This April, Britain’s bosses are being invited to follow five simple steps to prevent and reduce stress in their workplace.

The Health and Safety Executive’s (HSE) Working Minds campaign has called on employers to support workers mental health during Stress Awareness Month.

Liz Goodwill, head of the work-related stress and mental health policy team at HSE, said: “We are inviting business owners, employers and managers to join others across Britain to make a difference during Stress Awareness Month in five steps.”

Over the course of the month, employers are encouraged to focus on one of the campaign’s 5 Rs for each of the five weeks.

April is Stress Awareness Month: tackle stress in the workplace with five steps in five weeks | Consensus HR | Herts, Beds, UK

They are:

to Reachout and have conversations,
Recognise the signs and causes of stress,
Respond to any risks you’ve identified,
Reflect on actions you’ve agreed and taken,
make it Routine.

Preventing work-related stress isn’t just the right thing to do by workers, it’s the law. All employers are required to prevent work related stress to support good mental health in the workplace.

The Working Minds campaign brings together a range of tools and support to help businesses and workers including free online learning, Talking Toolkits, risk assessment templates and examples.

Liz added: “Failing to manage work-related stress can cost employers in reduced productivity, sickness absence costs, or even losing a valued member of the team. Employers are required to assess the risk of work-related stress impacting their workers, and act on the risks identified.

“As well as guiding you step by step, we provide all the practical templates, tools and resources you need to get started or, you can use it as an opportunity to review what you already do. A huge part of this is making it part of your everyday working life, not just a one-off tick box that gets forgotten about.”

The CIPD, the professional body for HR and people development, and The National Examination Board in Occupational Safety and Health (NEBOSH) are the latest organisations to join as campaign partners, taking the total supporters to more than 30.

Rachel Suff, senior policy advisor, employee relations at the CIPD, says: “Many organisations are reactive and tend to put more emphasis on providing support when people become ill rather than on prevention, including for mental ill health and stress. We need both! We want to see every organisation taking a proactive approach to employee wellbeing. We’re supporting the Working Minds campaign to help employers to create the working conditions and environment that prevents stress and supports good mental health. That also means designing jobs with realistic workloads and targets, and encouraging people to have a healthy work-life balance.”

There are six main areas that can lead to work-related stress if they are not managed properly. These are: demands, control, support, relationships, role and change. Factors like skills and experience, age, or disability may all affect someone’s ability to cope.

Matt Powell-Howard, Head of Product Development at NEBOSH, said: “I’m really pleased that NEBOSH is supporting the Working Minds campaign as we are committed to promoting good mental health and preventing work-related stress. We were delighted to have also collaborated with HSE on the development of the NEBOSH HSE Certificate in Managing Stress at Work qualification, which is designed to help business meet their legal obligations in this area.”

If you are an employer looking for support, a good place to start is to register for free bitesize learning. https://workright.campaign.gov.uk/working-minds-learning/

HSE – 4-04-24

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03 04 2024

More companies offer staff free testing for ADHD | Consensus HR | Herts, Beds

Matthew Chilcott Blog, Employment Law, General #bedfordshirebusiness, #consensus hr, #consensushr, #equality, #equalityact2010, #equalityanddiversity, #hertfordshirebusinesses, #networkinbeds, #outsourcedemploymentlaw, #outsourcedhumanresources, #outsourcing, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, Small Business, SME, SME's, stevenage

The UK’s largest long-term savings and retirement business, Phoenix Group, has joined a growing list of companies offering to test workers for attention deficit hyperactivity disorder (ADHD) amid concerns that NHS delays are leaving many without support. The entertainment giant Disney is now also offering all employees ADHD and autism assessments under its private healthcare service. The Telegraph notes that magic circle law firms Clifford Chance, Freshfields Bruckhaus Deringer, and Allen & Overy have all introduced workplace schemes which help lawyers with ADHD diagnostics and support. PwC UK also provides testing for neurological conditions including dysgraphia, a disorder where people have difficulty reading and writing.

The Daily Telegraph

Our HR Comment / Advise: More companies offer staff free testing for ADHD | Consensus HR | Herts, Beds

Matthew Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: “ADHD is covered under the Equality Act 2010 and required employers to make reasonable adjustments in the workplace for all members of the team and job applicants. Employees / applicants who have a disability or long-term health condition are covered and ADHD qualifies for both,

Most people with ADHD do not tend to tell their employers as they are worried about any possible repercussions at work. However, employers / members of the management team should encourage an open atmosphere where members of the team can be open and honest, so that if any reasonable adjustments are needed, they are implemented. Employers, should arrange to seek the appropriate medical advice from a medical professional so that the member of team is able to work and not be seen as less capable or as troublesome, especially given the stigma that surrounds ADHD.

Attention Deficit Hyperactivity dDsorder (ADHD), autism and dyspraxia are forms of neurodivergence – there are others too. Being neurodivergent will often amount to a disability under the EQa 2010, even if the person does not consider themselves to be disabled.”

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07 03 2024

Ayche v The Hop Box Ltd – Disability discrimination: Reasonable adjustment | Consensus HR – Herts, Beds

Matthew Chilcott Blog, General #bedfordshirebusiness, #consensus hr, #consensushr, #discrimination, #equalityact2010, #hertfordshirebusinesses, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, Small Business, SME, SME's, stevenage

Summary:

It is an employer’s duty to make a reasonable adjustment to alleviate a disadvantage placed on a disabled worker by a provision, criterion or practice because of their disability. An employer cannot rely on a worker’s own actions as sufficient to fulfil this duty.

Full details of the case can be found by Clicking Here

Note for employers

This case serves as a useful reminder that the obligation to make a reasonable adjustment is firmly on the employer, and it is not enough to simply rely on the employee to find an appropriate “workaround” to a PCP that puts them at a substantial disadvantage because of their disability.

In this case, had the respondent gone back to the claimant regarding the mask, and queried how the claimant was finding having to wear one, it would have become apparent that the mask was not being worn as intended and therefore a more suitable adjustment would have to have been found. By seemingly moving on from the matter without fully dealing with it, the respondent failed to discharge its duties under the EqA and must now wait to hear the outcome of this case, and if any compensation will be owed to the claimant.

LAW

Section 20(1), (2) and (3) of the Equality Act 2010 (EqA) puts employers under a duty to make reasonable adjustments where a provision, criterion or practice (PCP) of the employer’s puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled. The employer must take whatever reasonable steps are necessary to alleviate this disadvantage.

When considering a claim of failure to make reasonable adjustments, an employment tribunal has to first identify whether there is a PCP in place, and if it determines that there is, whether or not the employer put in place reasonable adjustments to ensure this did not substantially disadvantage a disabled worker where a non-disabled worker would not be.

FACTS

The claimant was engaged for two days of work as a server by the respondent. As the timing of the facts of this case fell in October 2020, when measures were still in place in the UK as a result of the Covid pandemic, the risk assessment for the event said that masks should be worn. This risk assessment, however, gave no consideration for those who were unable to wear a mask because of a disability.

The claimant initially did not wear a mask, due to suffering from asthma and the effects of a previous brain tumour. He was seen not wearing a mask by the respondent. The respondent suggested that the claimant swap with another worker who was preparing food, but this idea was dismissed as the claimant did not have sufficient knowledge to complete the preparations needed. Instead, the claimant put on the mask.

From the point of being asked to wear the mask, the claimant did so. However, when the respondent was not around, he wore the mask under his nose and would only put it on properly when someone in authority was nearby.

The claimant brought a claim of failure to make a reasonable adjustment to accommodate his disabilities.

EMPLOYMENT TRIBUNAL (ET)

The ET started by examining the facts of the case so as to identify if there was a PCP that put the claimant, because of his disability, at a disadvantage. It found that the requirement to wear a face mask when serving disadvantaged the claimant and that disadvantage was clearly attributable to his disability. A non-disabled person would not have an issue with wearing a mask in the same role.

The ET then had to consider if a reasonable adjustment was made to alleviate the disadvantage caused by the PCP. It held that the claimant’s decision to wear the mask but not to do so over his nose (except when he was concerned that persons of authority may be in the vicinity) alleviated the disadvantage caused to him entirely. The claimant’s complaint that he felt coerced by the respondent to wear a mask was rejected, on the basis that the claimant did not have to work the second day of the event but chose to.

In coming to the conclusion that the adjustment was reasonable, the ET noted that it is necessary to strike a balance between the reasonable needs of the disabled person for an adjustment on the one hand, and the reasonable needs of the employer on the other. In striking this balance, it had to consider if the steps to alleviate the disadvantage would be effective, the cost to the employer of them and the extent of the disruption that would be caused to the employer’s business in making the adjustment.

It was accepted by the ET that the claimant was exempt from wearing a mask, however it stated that “…[this] does not give him an untrammelled right to work at an event such as the Peddler Market without a face covering as the reasonable needs of the employer have to be taken into account”. Before it, the respondent had given what the ET felt to be “compelling evidence” that it was difficult enough to get the general public to wear a face covering, and that would only get worse if the claimant were to be permitted to not wear one whilst working in a public area, and that these difficulties could result in the respondent losing its licence to operate events.

Ultimately, the ET concluded that the respondent had made a reasonable adjustment for the claimant by permitting him to wear the covering below his nose other than when he saw a person in authority.

The claimant appealed against this on the basis that as the respondent was unaware of this adjustment, it did not meet its duty to make a reasonable adjustment.

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EMPLOYMENT APPEAL TRIBUNAL (EAT)

In reviewing the case, the EAT determined that the ET had misunderstood the facts, and this led to it finding as it did. It is apparent from the judgment that the ET had concluded that the respondent was aware of the claimant’s self-imposed reasonable adjustment of only wearing the mask properly when the respondent or its representatives were around, when in fact both parties to this case agreed that the respondent did not have this knowledge.

The EAT held that the result of this fundamental misunderstanding was that the ET had not properly considered the true facts in the case. Therefore, it held that it should be remitted to the same ET to re-determine the reasonable adjustments claim, and whether or not a reasonable adjustment had been applied to alleviate the impact of the PCP.

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28 02 2024

Steel v Spencer Road LLP – Clawback provisions: Restraint of trade | Consensus HR – Herts, Beds

Matthew Chilcott Blog, Employment Law, General #bedfordshirebusiness, #consensus hr, #consensushr, #hertfordshirebusinesses, #outsourcedhumanresources, Business, Business Owners, employment law, Employment Law Update, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

SUMMARY

A clawback provision can disincentivise an employee to resign, but this is not the same as a restraint of trade.

A full copy of the Approved Judgement – Steel v Spencer Road LLP – Clawback provisions: Restraint of trade can be found by Clicking Here. Steel v Spencer Road LLP – Clawback provisions: Restraint / trade

LAW

The restraint of trade principle, which comes from contract law, is based on the idea that an individual should be free to work without undue interference from another party. Contractual terms that appear to restrict this freedom to work or carry out a trade or business must go no further than is necessary to protect an organisation’s legitimate business interests. Where they do, they could be deemed void.

Steel v Spencer Road LLP – Clawback provisions: Restraint / trade – A two-stage test is applied in deciding where a clause breaches the restraint of trade doctrine.

1) Is the clause in fact a restraint of trade; and

2) If it is, is it reasonable with regard to the parties and the public interest?

FACTS

The claimant worked for the defendant for almost seven years prior to his resignation. Over that time, he received a substantial amount in discretionary annual bonuses. In the last year of his employment, this bonus was to the value of £187,500. Shortly after receiving the bonus, the claimant resigned his position to go and work for a competitor of the respondent.

Under his contract of employment, the discretionary bonus was conditional on (1) the employee staying in employment for three months following the payment of the bonus and (2) notice to terminate the contract not being served or given during that three-month period.

In accordance with the above terms, or “clawback provisions”, the respondent requested repayment of the bonus. The claimant refused to do this, and so the respondent served a statutory demand for the full amount of the bonus plus over £12,000 in legal fees.

INSOLVENCY AND COMPANY COURTS (ICC)

In response to the statutory demand, the claimant applied to the ICC, which has the power to set aside a statutory demand if the debt is disputed “on grounds which appear to the court to be substantial”. Central to his argument for why this should happen was that the clawback provisions were an unreasonable restraint of trade, and /or alternatively they were penalty clauses which are unenforceable.

The ICC dismissed the application, holding that the clawback provisions could not be a restraint of trade as defined in law as they didn’t stop the claimant from working elsewhere. Whilst there might be circumstances, the judge went on, where the consequences of a clawback clause are so severe that they would be out of proportion to the benefit received by the respondent, this was not the case here.

The argument that the clawback provisions were penalty clauses was also rejected.

This was appealed by the claimant and the case went before the high court.

HIGH COURT

Looking at the facts of the case, the High Court drew a distinction between a disincentive to resign and a restraint of trade and held that a clause that disincentives an employee from leaving employment does not in itself make that clause a restraint of trade. In this case, the bonus scheme could cause an employee to remain in employment longer than they would have liked to avoid the clawback, but it did not actually stop them leaving or working elsewhere. It just made that option less palatable.

Looking at the clawback provisions alongside other clauses within the contract, including a three month notice period and a thirteen-week post-termination restriction on working for a competitor, the court rejected that argument that all together these acted as a sufficiently strong disincentive to resign that the effect was to act as a restraint of trade. In any event, the claimant had not challenged these provisions.

Note for employers.

Clawback provisions are sometimes used as a retention tool by employers, and this case can reassure employers that where these are applied, they are likely to be enforceable (although as always, each case would be determined on its specific facts). However, employers should avoid using this as their only retention tool, as its use can leave an exiting employee, and those who remain in employment, with a negative impression of the employer and could impact on employee satisfaction and engagement.

This case is a reminder for employers of the usefulness of clawback provisions in discouraging employees from leaving with little or no notice. They can be a strong, but short term, disincentive to an employee resigning and are arguably less likely to be successfully challenged than restrictive covenant clauses that act to prevent the (ex)employee from working elsewhere.

If the government does go ahead with its plans to limit non-compete clauses to three months, as was announced in 2023, employers may come to rely on clawback provisions more than they previously would have. Making sure they are proportionate to the means which they seek to achieve and do not go further than disincentivising an employee from resigning will be important for employers looking to switch to using these as an alternative to a non-compete clause, or alongside them.

HRInform 23-02-24

Click here to read more about Contracts of Employment. Contracts of Employment must be given to an employee on day one of employment.

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27 02 2024

More than 500 businesses fail to pay minimum wage | Consensus HR – Herts, Beds

Matthew Chilcott Blog, Employment Contracts, Employment Law, General, Payrol #bedfordshirebusinesses, #consensus hr, #consensushr, #hertfordshirebusinesses, #minimumwage, #outsourcedemploymentlaw, #payroll, bedfordshire, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

More than 500 businesses, including Greggs and Harrods, failed to pay some of their employees the minimum wage, according to a list released by the Department for Business and Trade. The analysis, which covers breaches between 2015 and 2023, shows that recruitment agency Staffline topped the list for failing to pay 36,767 workers correctly, while Estée Lauder failed to pay £894,980 to almost 6,000 workers. The report shows that 524 employers have repaid more than 172,000 workers almost £16m, plus an additional penalty, for breaches in paying the statutory national minimum wage. Kevin Hollinrake, the minister for enterprise, markets and small businesses, said: “Employees deserve to get paid properly for the hard work they put in.” Caroline Harwood, an employer tax partner at BDO, said: “It’s always a bit of a shock to see so many well-known names appearing on HMRC’s list of employers who have been found to be in breach of national minimum wage rules.”

The Times

Our HR comment: – More than 500 businesses fail to pay minimum wage | Consensus HR – Herts, Beds

Matthew Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: “This never ceases to amaze me, the amount of companies that fail to pay the minimum wage considering our wages are one of the main things we all work for. However, it can also be easier said than done and hence why, the importance of ensuring yearly salary reviews take place, to give businesses the opportunity to make sure all members of the team are paid adequately.

Generally wage increases happen in April each year and is publicised extensively by the Government so as to ensure that all businesses have the information to make any changes needed. The Government has announced the rates of the National Living Wage (NLW) and National Minimum Wage (NMW) which will come into force from April 2024. In doing so, it has accepted in full the recommendations of the Low Pay Commission.

The rates which will apply from 1 April 2024 are as follows:

	NMW Rate	Increase in pence	Percentage increase
National Living Wage (21 and over)	£ 11.44	£ 1.02	9.8%
18-20 Year Old Rate	£ 8.60	£ 1.11	14.8%
16-17 Year Old Rate	£ 6.40	£ 1.12	21.2%
Apprentice Rate	£ 6.40	£ 1.12	21.2%
Accommodation Offset	£ 9.99	£ 0.89	9.8%

Gov.Uk

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26 02 2024

Manual handling at work: guidance on the law | Consensus HR – Herts, Beds

Matthew Chilcott Blog, General, Health & Safety #bedfordshirebusiness, #consensus hr, #consensushr, #Health&Safety, #hertfordshirebusinesses, #manualhandling, #outsourcedemploymentlaw, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

As an employer, you must protect your workers from the risks of manual handling injuries in the workplace.

You can find help with preventing these sort of risks in your workplace on the HSE manual handling website pages.

There is a range of information and advice for employers, including sections on assessing manual handling and training for workers.

You can also find links to a variety of useful resources. These include our free-to-download publications:

At Consensus HR, we provide Health & Safety services by working with our specialist HR suppliers.

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Manual handling at work: guidance on the law | Consensus HR - Herts, Beds

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12 02 2024

Britain has a bigger but sicker workforce than previously thought | Consensus HR – Herts, Beds

Matthew Chilcott Absence Management, Blog, Employment Law, General #bedfordshirebusiness, #consensus hr, #consensushr, #hertfordshirebusinesses, #sickness, absence, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, Small Business, SME, SME's, stevenage

Employers can share staff data in a mental health emergency | Consensus HR | Herts, Beds

The Office for National Statistics (ONS) has revised its estimates of the size and shape of the UK labour market showing that it has a bigger workforce, with employment up 170,000 compared to previous estimates.

However, the ONS has also highlighted that the number of people economically inactive due to long-term sickness has been revised up from its previous record high of 2.6 million to 2.8 million.

Independent think tank, the Resolution Foundation, explained that ONS’ reweighting of the labour force survey was to reflect the UK population growing faster than previously thought and it confirms that the labour market is bigger but weaker than previous estimates.

The ONS has also revised the shape of the UK population, with a slightly larger share of younger (aged 16–17 and 18–24) workers (up 0.2 and 0.1 percentage points respectively), and a smaller share of workers aged 25–34 and 50–64 (down 0.3 and 0.2 percentage points).

Hannah Slaughter, Senior Economist at the Resolution Foundation, said: “Britain has a bigger, but sicker, workforce than we previously thought. Of particular concern is that the fact that a record 2.8 million people in the country are currently inactive due to ill-health. Tackling rising ill-health is a huge social and economic challenge that we’ll be facing throughout the 2020s, as will getting the UK employment back up to and beyond pre-pandemic levels.”

Our HR Comment / Advice: – Britain has a bigger but sicker workforce than previously thought | Consensus HR – Herts, Beds

Matthew Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: There are some very interesting statistics within this article and interesting how it differs dependent of age. Sickness within the team can cause severe consequences within any business and is why we always ensure a suitable, proactive sickness Policy & Procedure I introduced with management taking the necessary action as requested. All employees regardless of length of service or sickness should have a return-to-work meeting arranged, to discuss their absence and identify if there is any action the company / employee can take to support them, whilst ensuring it does not become a regular occurrence. Failure to manage sickness appropriately can result in a demotivated team and drop in sales and customer service.”

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Employee, Worker or Self-Employed … What’s the Difference

07 02 2024

Determining an Individuals Employment Status | Consensus HR – Herts, Beds

Matthew Chilcott Blog, Employment Contracts, Employment Law, General #bedfordshirebusinesses, #consensus hr, #consensushr, #employmentstatus, #herrtfordshire, #hertfordshirebusinesses, #outsourcedemploymentlaw, #outsourcedhumanresources, Business, Business Owners, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

Plastic Omnium Automotive Ltd v Horton – Employment status: Legal test:

Summary:

When determining an individual’s employment status, it is always important to return to the tests set down in the law as shown in Plastic Omnium Automotive Ltd v Horton.

Law:

Employment status has been the subject of much debate over the years, and a number of significant cases have been brought in an effort to determine where the line lies when it comes to employees, workers, and those not in an employment relationship.

The legal definition of the various status’ can be found in the Employment Rights Act 1996 (ERA 1996). Section 230. Under this, an “employee” means an individual who has entered into or works under a contract of employment.

A “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

The worker relationship has a number of key characteristics, including the lack of mutuality of obligation between the worker and the employer, and the need to perform the services personally. As a worker, an individual does enjoy some basic employment rights such as statutory sick pay, minimum wage and the right to take paid holiday. The legal test to be applied is as follows:

Has the individual entered into a contract to personally perform work or services for another party to the contract? If not, they cannot be a worker.
Is the other party to the contract a client or customer of the individual’s business? Again, if they are then the individual is not worker.

Facts:

The claimant was engaged through a service company to provide services to the respondent. Along with another, the claimant was a shareholder of the service company from which they drew salary and dividends.

The service company and the respondent had in place a written contract. Under that contract, the claimant could not provide a substitute in his place although in reality, this happened for some time. The contract also clearly stated that there was no employment contract in place and the claimant was not entitled to holiday or sick pay. However, the daily fee charged by the service company for the services of the claimant included a sum in respect of holiday.

Under the arrangements the respondent provided the claimant with the IT equipment needed to perform his role, a company email address and an office access card. He also reported into one of the respondent’s directors, was required to work set hours and attend training provided by the respondent. In essence, the claimant was treated the same as any other employee of the respondent, other than that he was not subject to the appraisal or disciplinary process. He was required to sign in and out of buildings, as did employees of the respondent, and requested leave in the same way as employees.

An issue arose between the claimant and the respondent. The claimant brought a claim before an employment tribunal that he was an employee, or a worker, and that the respondent had unlawfully deducted his wages by failing to pay him.

Employment Tribunal (ET):

The ET held that whilst not an employee, he was a worker because he was integrated into the respondent’s business and the relationship between the claimant and the respondent operated with the claimant in a subordinate position. The respondent provided the claimant with IT equipment, an email address and he was required to work regular hours and report to one of the respondent’s directors.

The claimant was awarded £28,500 in unlawfully deducted wages.

Employment Appeal Tribunal (EAT):

On appeal the EAT disagreed and found that he was neither an employee nor a worker. There was no contract between the claimant and the respondent, so he did not satisfy the first part of the test for worker status which would have required the claimant to have entered into a contract personally with the respondent. The contract in place was between the service company and the respondent and it was reflective of the working relationship between the claimant and the respondent. Also, whilst the claimant was well integrated to the respondent’s company, the EAT found that this did not mean that the other factors should be ignored.

As a result, the appeal was allowed and the EAT concluded that in this case there was no employment status.

Note for employers:

This case is a reminder of the need to always return to the legal test when determining questions of status. The context of this case along with numerous factors could be argued to indicate some form of employment status. So much of the day-to-day operation of the work performed by the claimant for the respondent was similar, even identical to that of the respondent’s own employees. But in returning to the legal test applied to questions of status, i.e. has the individual entered into a contract under which they undertake to personally perform work or services for another party to the contract, and is the other party a client or customer of the individual’s business – it is clear that employment was not at the heart of this contract.

HRInform-Feb24

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Latest blog: Stress Awareness Month: NEBOSH and CIPD join HSE’s Working Minds campaign

April is stress awareness month and HSE is urging employers to prevent and reduce stress in their workplace.

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Deutsche Bank to provide menopause pods in London office | Consensus HR | Herts, Beds, UK

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Deutsche Bank to provide menopause pods in London office | Consensus HR | Herts, Beds, UK

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Did you know? April is Stress Awareness Month:

They are:

to Reachout and have conversations,

Recognise the signs and causes of stress,

Respond to any risks you’ve identified,

Reflect on actions you’ve agreed and taken,

make it Routine.

Preventing work-related stress isn’t just the right thing to do by workers, it’s the law. All employers are required to prevent work related stress to support good mental health in the workplace.

The Working Minds campaign brings together a range of tools and support to help businesses and workers including free online learning, Talking Toolkits, risk assessment templates and examples.

Liz added: “Failing to manage work-related stress can cost employers in reduced productivity, sickness absence costs, or even losing a valued member of the team. Employers are required to assess the risk of work-related stress impacting their workers, and act on the risks identified.

The CIPD, the professional body for HR and people development, and The National Examination Board in Occupational Safety and Health (NEBOSH) are the latest organisations to join as campaign partners, taking the total supporters to more than 30.

There are six main areas that can lead to work-related stress if they are not managed properly. These are: demands, control, support, relationships, role and change. Factors like skills and experience, age, or disability may all affect someone’s ability to cope.

If you are an employer looking for support, a good place to start is to register for free bitesize learning. https://workright.campaign.gov.uk/working-minds-learning/

HSE – 4-04-24

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Our HR Comment / Advise: More companies offer staff free testing for ADHD | Consensus HR | Herts, Beds

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Summary:

Note for employers

LAW

FACTS

EMPLOYMENT TRIBUNAL (ET)

EMPLOYMENT APPEAL TRIBUNAL (EAT)

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