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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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21 02 2024

Government takes action against ‘fire and rehire’ practices | Consensus HR – Herts, Beds

Matthew Chilcott Blog, Employment Law, General, Recruitment, Redundancy #bedfordh, #consensushr, #Fire, #outsourcedemploymentlaw, #outsourcedhumanresources, #rehire, bedfordshire, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

A new statutory Code of Practice concerning certain controversial dismissal tactics will, the Department for Business and Trade (DBT) argues, protect workers’ rights whilst respecting business flexibility.

Dismissal and re-engagement, also known as ‘fire and rehire’, refers to when an employer sacks an employee and then offers them a new contract on new, often less favourable, terms.

Business Minister Kevin Hollinrake said: “Our new Code will crack down on employers mistreating employees and sets out how they should behave when changing an employee’s contract.”

It will, he went on, make clear how employers must behave in this area and help to preserve security and opportunity for those in work.

A consultation on a draft statutory Code that sets out employers’ responsibilities when seeking to change employment terms and conditions ran from 24 January to 18 April 2023.

The Government has now published its response to the 50 replies it received to that consultation. This can be found at https://www.gov.uk/government/consultations/draft-code-of-practice-on-dismissal-and-re-engagement together with an updated draft statutory Code on dismissal and re-engagement.

This has been laid in Parliament for approval by both Houses and, subject to that approval, it will be brought into effect later in the summer.

Employment tribunals will have the power to apply an uplift of up to 25% of an employee’s compensation if an employer unreasonably fails to comply with the Code.

Head of Public Policy at the Chartered Institute of Personnel and Development (CIPD), Ben Willmott, said: “The Code promotes good practice, making clear employers should always seek to agree any changes to terms and conditions with employees and that ‘fire and rehire’ should only be used as an absolute last resort. It highlights the importance of early and meaningful consultation with employees to maximise the chances of finding alternative solutions which can lead to agreement over proposed changes.”

HRInform – 20-02-24

Our HR Comments: – Government takes action against ‘fire and rehire’ practices | Consensus HR – Herts, Beds

Matthew Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: “The updated draft of the Code for dismissal and re-engagement is an interesting read following the feedback received with the power to award a 25% uplift should an employer not follow the Code. The link provided within this article links to the draft code and the history behind ‘fire and rehire’ and I do not find anything new and should be what any reasonable employer would be following resulting in the correct and legal outcome for the employee(s) involved. Good constructive consultation is key as with all HR and management in general, to ensure a suitable outcome for the member(s) of the team, management and business in general. At Consensus HR, we work with our clients to ensure that any amendments proposed are managed professionally and to best practice.”

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Are you concerned about how you recruit and your recruitment strategy?

If you ever need to recruit and want to ensure that your Recruitment Strategy is fit for purpose and gains the best results for the business and team, give us a call now for a non-obligatory chat on how Consensus HR can help you and your business. Consensus HR | Your Outsourced HR Department – 01438 576750 | “Helping companies take the pain out of managing people whilst Preventing People Problems.”

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20 02 2024

Sullivan v Isle of Wight Council – Whistleblowing: Job applicants | Consensus HR – Herts, Beds

Matthew Chilcott Blog, Employment Law, General #bedfordshirebusiness, #consensushr, #hertfordshirebusinesses, #jobapplicants, #outsourcedemploymentlaw, #outsourcedhumanresources, #whistleblowing, bedfordshire, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultants, HR Support, Recruitment, Small Business, SME, SME's, stevenage

Summary:

Whistleblowing protection does not extend to external job applicants.

Note for employers:

This case clarifies the level of protection that job applicants can be given against whistleblowing and confirms that it will not be applied to external applicants, save under limited NHS job candidates not applicable in this case.

Nevertheless, even though the protection wasn’t extended in this case, this should serve as a reminder of the need for a robust recruitment process. This includes measures such as having more than one interviewer to avoid misinterpretation of what has been said. Another measure that can helps employers in cases such as these are compiling detailed notes during the interview process, including when it comes to making decisions. This will help employers get an overview of what happened during the interview and (hopefully) reassure them that genuine and on-discriminatory reasons explain the applicant’s rejection.

Our HR / Employment Law comments are at the bottom of this article.

LAW

The Employment Rights Act 1996 (ERA) sections 47B and 48 give protection to employees and workers following a public interest disclosure. It does not, however, extend that protection to job applicants.

Under the Human Rights Act 1998 section 3(1), primary legislation has to be read, so far as possible, in a way that is compatible with the European Convention on Human Rights (ECHR), including the status of worker under the ERA. That is unless by doing so it is necessary to amend the wording of the law; only parliament can do that.

Article 10 ECHR relates to the freedom of expression, and article 14 the prohibition of discrimination. Withholding protection from a whistle-blower legally entitled to protection would be a breach of these rights.

In Gilham v Ministry of Justice [2019], the Supreme Court had to decide how to interpret the ECHR definition of “other workers” found in article 14 in order to apply the whistleblowing protection under the ERA. To do so, it created a four stage test:

(i) whether the facts fell within an ECHR right;

(ii) whether the claimant was treated less favourably than others in an analogous situation;

(iii) whether the reason for such treatment was based on a listed ground or other status;

(iv) whether the treatment was proportionate

FACTS

The claimant had two job interviews with the respondent but was not accepted for either role. The claimant then filed a police report that alleged that during the interviews she had been verbally harassed by the respondent’s employees. She later complained directly to the respondent about the way the interviews had been conducted, prompting an internal investigation. She also made a complaint to her MP about the interviews and alleged that an employee of the respondent was involved in trust related financial irregularities. The respondent dismissed the complaints and disapplied her right to appeal.

The claimant subsequently brought a claim before the ET arguing that she had suffered a detriment when her right to appeal had been disapplied, and that this was because of the allegations regarding the financial irregularities she had made. She argued that whilst she was not a worker under the ERA, the protections for whistle-blowers should be extended to applicants by reason of ECHR articles 10 and 14

EMPLOYMENT TRIBUNAL (ET)

The ET had to first establish if it had jurisdiction to hear this case, which hung on whether or not the claimant held the appropriate status to be eligible to bring an ET claim.

In order to answer this, the ET applied the four stage test in Gilham v Ministry of Justice [2019]. To answer the second stage of that test, an “analogous” situation must be identified. Here, the claimant was arguing that internal applicants could be used for comparative purposes, and that by denying the right of appeal she had been treated less favourably that an internal applicant would have been. This was however rejected by the ET. In the case of an internal applicant, there is an existing relationship between the that does not exist in the same way as between the employer and an external applicant, and as such the situations cannot be analogous.

This reasoning led to the conclusion that she was not eligible to bring a whistleblowing claim. The ET held that Parliament had clearly intended to exclude job applicants from having whistleblowing protection. It also held that the ECHR was not engaged here, as ‘job applicant’ was not a recognised status for the purposes of article 14. In any event, the ET held that even if that were not the case, the actions of the respondent would have been proportionate in the circumstances.

This was appealed.

EMPLOYMENT APPEAL TRIBUNAL (EAT)

Dismissing the appeal, the EAT confirmed the ET’s decision that the claimant was not treated less favourably to others in an analogous situation as her status as external job application did not fall within the prescribed statuses in article 14. To hold otherwise, the EAT said, would only be possible after “legislative deliberation” on the wording of the existing law.

HRInform

Our HR Comment and Advice: – Sullivan v Isle of Wight Council – Whistleblowing: Job applicants | Consensus HR – Herts, Beds

Matthew Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: – “This is a rather interesting and comprehensive case that took me a few reads to fully understand but highlights the importance of companies ensuring their Recruitment Strategy is correct and working to best practice and the law. As stated within this case, Sullivan was not an employee and as such not eligible to bring a Whistleblowing claim but regardless of this, if the employer had ensured that they worked to best practice when recruiting by ensuring more than one person was recruiting and detailed notes of the interview had been kept when making the decision, this could have been dealt with a lot easier and promptly.”

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19 02 2024

Pay settlements set to fall for rest of 2024 | Consensus HR – Herts, Beds

Matthew Chilcott Blog, General, Payrol #bedfordshirebusiness, #bedfordshirebusinesses, #consensushr, #hertfordshirebusinesses, #outsourcedhumanresources, #payroll, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourced hr, Small Business, SME, SME's, stevenage

According to the latest Labour Market Outlook, produced by the Chartered Institute of Personnel and Development (CIPD), employers’ basic pay increase expectations over the next 12 months have fallen for the first time since spring 2020.

Having held steady at 5% for more than a year, UK employers expected basic pay increases for the year ahead have fallen to 4%, the CIPD has reported.

Its report also shows that fewer employers expect their workforce to grow than in previous quarters. Overall, a third (33%) of employer’s plan to increase their total staff level over the next three months while 10% plan to decrease their overall staffing levels.

However, many employers (38%) continue to report hard-to-fill vacancies and one in five respondents (21%) expect significant problems filling roles over the next six months.

Senior Labour Market Economist for the CIPD, Jon Boys, said: “We’ve seen a sustained period of high wage growth in response to a tight labour market, and high inflation pushing up the cost-of-living. Pay growth has helped individuals but it leaves employers with a higher wage bill to cover.”

To see a sustained return to growth, he continued, there needs to be a real focus on boosting productivity by investing in workplace skills and technology.

If firms are planning to reduce base pay increases, Mr Boys suggested that it would be in their interest to highlight their wider benefits package and to improve job quality.

The Labour Market Outlook for Winter 2023–24 can be found here.

HRInform – 13^th February 2024

Our HR Comment: – Pay settlements set to fall for rest of 2024 | Consensus HR – Herts, Beds

Matthew Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: “This article from the CIPD, our Chartered Institute has some very interesting statistic and emphasises the importance of business ensuring that their recruitment strategy for their business is correct and attracting / retaining the right talent. A Consensus HR, we work with companies to ensure that when they do recruit, they have all the correct tools in place to make it a success such as: Right advertising and marketing, correct recruitment strategy, writing of a Job Description, drafting of an applicable Contract of Employment, which they must have from day one of Employment. Access to a comprehensive HR Employee Handbook and state of the art IT system where they can gain access to all their / companies HR Policies and Procedures and records and book a holiday. Consensus HR help companies in all areas of Human Resources whilst making sure that our clients are never treated as a number and when they call us, we know straight away what they wish to discuss whilst providing a suitable best practice and Employment Law solution.”

Are you currently considering a pay review?

If you have a team and business that is growing and now are at the stage where you need to recruit or ensure that your company is working to best practice and the law whilst being an employer of choice, contact us now for a non-obligatory telephone conversation. Consensus HR | Your Outsourced Human Resources & Employment Law Department | “Helping companies take the pain out of employing people whilst Preventing People Problems – 01438 576750”.

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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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What is your Employment Status?

Do you get concerned about the legalities / best practice when it comes to employing a member of the team and do not know which way to turn? We offer a non-obligatory option to discuss. Give us a call now. We are an Outsourced HR & Employment Law company who work with businesses that wish to provide the resources of an HR Department with unlimited telephone and emails provided for a monthly retained fee. Consensus HR | Your Outsourced HR & Employment Law Department – “Helping companies take the pain out of managing people whilst Preventing People Problems – 01438 576750”.

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06 02 2024

Proposal to bring back fees in Employment Tribunals and the EAT | Consensus HR – Herts Beds:

Matthew Chilcott Blog, Employment Law, General #bedfordshirebusiness, #employmenttribunal;, #hertfordshirebusinesses, #HR Herts, #outsourcedemploymentlaw, #outsourcedhumanresources, bedfordshire, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

The Ministry of Justice (MoJ) has launched a consultation into the proposed reintroduction of modest fees in the Employment Tribunals (ET) and Employment Appeal Tribunal (EAT).

With full details available at https://consult.justice.gov.uk/digital-communications/introducing-fees-employment-tribunals-eat, it states that the aim is to contribute to the continuous improvement of the Courts and Tribunals Service and to reduce the cost to the taxpayer to fund these services.

The proposal is to introduce “modest fees” for claimants to bring a claim in the ET and appellants bringing an appeal in the EAT.

Parliamentary Under Secretary of State, Mike Freer, said: “The Ministry of Justice has carefully considered the 2017 Supreme Court ruling on the previous approach to fees in the Employment Tribunals and has endeavoured to ensure that the fees proposed in this consultation are proportionate and affordable, in line with the judgment.”

As with other court and tribunal jurisdictions, he went on, those who cannot afford to pay the proposed fees will be supported by the Government’s fee remission scheme, Help with Fees (HwF).

In addition, modest fees may incentivise parties to settle their disputes early through ACAS without the need for claims to be brought to an Employment Tribunal, the MoJ argues.

The proposal is to introduce a £55 issue fee that is payable by the claimant on bringing a claim to the Employment Tribunal with the same fee charged in the EAT, payable per judgment, decision, direction or order of an ET being appealed.

The deadline for responding to this consultation is 25 March 2024.

HRInform – Jan-24

Our HR Comment: Proposal to bring back fees in Employment Tribunals and the EAT | Consensus HR – Herts Beds.

Matthew Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: “This is a very interesting article and the information / link provided by the Government shows some detailed information since the previous introduction of fees was trialled from July 2013 to July 2017 and characterised claims in two different ways:

‘Type A’ or ‘Type B’ claims different fees payable dependent on whether the claim was a Type A or Type B claim. Type A claims (which covered simple disputes such as unpaid holiday pay) attracted an issue fee of £160 and a hearing fee of £230, totalling £390 in fees. Type B claims (which covered more complex disputes such as discrimination) attracted an issue fee of £250 and a hearing fee of £950, totalling £1200 in fees. The EAT attracted a £400 issue fee and a £1200 hearing fee, totalling £1600 in fees.

A proposed fee of fee £55 is generally seen as affordable for claimants and appellants and we wait to see if this progresses with the current long waiting times.”

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Possible Return of Employment Tribunal Fees

Do you run a business with a team and wish to concentrate on what you know best, your product and have somebody else look after the HR & Employment Law side ensuring you are working to best practice and the law whilst becoming an employer of choice? We are an Outsourced HR & Employment Law company who work with businesses that wish to provide the resources of an HR Department with unlimited telephone and emails provided for a monthly retained fee. Consensus HR | Your Outsourced HR & Employment Law Department – “Helping companies take the pain out of managing people whilst Preventing People Problems – 01438 576750”.

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05 02 2024

Dotting the I’s and Crossing the T’s | Consensus HR – Herts, Beds

Matthew Chilcott Blog, General @sg1businessclub, #bedfordshirebusiness, #consensus hr, #consensushr, #hertfordshirebusinesses, #outsourcedemploymentlaw, #outsourcedhumanresources, bedfordshire, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

One of the many things I have learnt since I have been fortunate to be in employment within a wide range of sectors and roles prior to moving permanently to HR is the importance of Dotting the I’s and Crossing the T’s.

Many of our clients have very successful businesses who have had to adapt in some cases drastically since the Covid situation with drop in sales and bottom-line profit, team members working from home, high sickness levels and more than ever as the need to dot the I’s and cross the T’s been more apparent.

Employment Life Cycle:

Human Resources (HR) is made up of what we call within the business, the HR Employment Life Cycle (ELC) from the recruitment, development, reward and termination which affects all members of the team.

Assets:

We always say that your team within your company is one of your most important assets and need to be treated as such with the correct tools in place when recruiting the right candidate to ensure the relevant development, salary and benefits are provided whilst remembering the Rome was not built in a day!

Planning:

Now, probably more than ever time and planning are crucial if your business is going to be successful. Although many business owners know their products and services extremely well, when it comes to employing people, they fail to ensure that the correct Policies and Procedures are followed to ensure best practice and adherence to the law.

Experience:

Experience has shown us that many business owners are extremely reasonable and, in some circumstances, too reasonable but fail to keep a note of what action they have taken to demonstrate how reasonable they have been as an employer. As I have commented many times, HR is covered by Civil Law and the ‘Balance of Probabilities’ and the word reasonable is used continually. Business owners have to be able to demonstrate that the action they have taken is reasonable and should it come to an Employment Tribunal (ET) they would be the one answering the claimants Barristers / Solicitors questions whilst justifying why the action taken was what a ‘reasonable’ employer would do. You may ask ‘what would a reasonable employer do?’ This is where you come in and explain the actions you took and why you as an employer / manager believed they were ‘reasonable’. The ET Judge will then decide if they agree or not and if not why?

Why Dotting the ‘I’s’ and Crossing the ‘T’s”:

When I thought about the title of this blog, I wanted to emphasise that in the world of HR, it may seem to some business owners that we are all paperwork and policies and procedures, but it is vital that the correct, professional systems (ACAS) and documents are put in place from the start. One of our previous blogs titled ‘HR Foundations” highlights this. If business owners are spending time being a reasonable employer, then they need to ensure that they gain the benefits from it. We always suggest that managers / business owners keep draft bullet points on a team members strengths and development needs for use when needed such as in a performance review (Appraisal) as the bad points are generally remembered more than the good points and both are needed to ensure a successful review takes place. (General Data Protection Regulations (GDPR) must be adhered to.) Success in this area can result in businesses receiving the benefits such as better employee retention and sales to name a few but it is vital that this is not kept as a secret or used in a negative way or it could result in the opposite of bad motivation, retention, sales and a breach of the GDPR and law.

Employers when having the opportunity to employ should ensure that their Policies and Procedures within the world of HR cover all areas of the Employment Life Cycle and are written in plain English, user friendly, properly implemented, followed and documented with the team, whilst ensuring they Dot the “I’s’ and Cross the ‘T’s’. Employers must ‘practice what they preach’ and ‘walk the talk’ as failure when dealing with any performance, conduct or capability issues to name a few, could result in a negative, rather than a positive outcome.

Too many times we see new employees dumped with a barrage of paperwork on their first day of employment and it is known from experience that a new employee will sign anything on their first day as they want to make a good impression and not ask questions that they believe will make them look silly. New members of the team should be welcomed to the business and given a tour of their new business environment whilst ensuring a briefing / induction session takes place on the companies Policies & Procedures, Health & Safety and where to find a copy if needed in the future. We use Breathe HR for our clients and ensure that all members of their teams have access to the business Policies & Procedures as and when needed through their portal whether this be on their mobile or computer.

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If you run a company with a team and wish to grow and continue with what you know best, your product and not get tied down with HR, Employment Law and Payroll, give us a call now for a non-obligatory chat to see how we can help you work to best practice and the law. Consensus HR | Your Outsourced HR Dept – “Helping companies take the pain our of managing people whilst Preventing People Problems – 01438 576750

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01 02 2024

NHS anaesthetist fell asleep on the job | Consensus HR – Herts, Beds

Matthew Chilcott Blog, Disciplinary & Grievance, Employment Law, General, Handbook, Health & Safety, Investigations #consensus hr, #consensushr, #hertfordshirebusinesses, #misconduct, #NHS, #outsourcedemploymentlaw, #outsourcedhumanresources, bedfordshire, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

A senior NHS anaesthetist, Thomas Herbst, has been suspended after he was caught napping in an operating theatre during surgery. Herbst fell asleep shortly after administering an anaesthetic and failed to wake up even when tapped by a colleague. He blamed long working hours and an undiagnosed illness for his drowsiness. This is not the first time Herbst has been caught sleeping in the theatre, as he was previously given a warning by the General Medical Council. Despite being found guilty of serious professional misconduct, Herbst was suspended for six months after offering to reduce his number of shifts. The incident resulted in the cancellation of an afternoon list of patients due for operations. Herbst defended his behaviour, stating that many anaesthetists across the UK close their eyes in operating theatres. The Medical Practitioners Tribunal Service has ordered a review hearing for Herbst later in the year.

Daily Telegraph

The Times

London Evening Standard

The Daily Telegraph

Our HR Comment: NHS anaesthetist fell asleep on the job | Consensus HR – Herts, Beds

Matthew Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: “This article demonstrates a very worrying episode of tiredness at work and in a sector where the health and welfare of your team is of the utmost importance. Consensus HR states that regardless of what sector you work in, the hours you work must be managed correctly or as in this instance you could be having the adverse effect to what you are aiming to achieve and thankfully in this case, no detriments to health occurred. Businesses always need to ensure that any misconduct is fully investigated correctly, and the appropriate action taken such as reducing the number of shifts / hours a member of the team works.”

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31 01 2024

Keep people safe from future dangers of asbestos | Consensus HR – Herts, Beds

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

The dangerous material was banned from construction 25 years ago
Asbestos may still be present in buildings built before 2000
New HSE campaign emphasises legal duties to manage asbestos

Buildings that people use in their daily lives, such as workplaces, schools and hospitals are the focus of a new campaign to keep people safe from asbestos.

Asbestos: Your Duty launching today, Monday 15 January, aims to improve understanding of what the legal duty to manage asbestos involves.

The Health and Safety Executive (HSE) wants anyone with responsibilities for buildings to do everything they must do to comply with the law and prevent exposure to this dangerous substance, which was widely used in post-war construction before it was completely banned in 1999.

The legal duty to manage asbestos covers a wide range of buildings such as museums, schools, hospitals, and places of worship, as well as workplaces like offices and factories.

Businesses and organisations responsible for premises built before the turn of the century, and especially those between 1950 and 1980 when the use of asbestos in construction was at its peak, must carry out the necessary checks and understand their legal responsibilities.

People who visit or work in these buildings will not be exposed if asbestos is properly contained. But it can become dangerous when disturbed or damaged.

Updated information, new templates (including an asbestos management plan template), and explanatory videos can be found on HSE’s website to help anyone who is unsure of their legal duties – or just need to refresh themselves – on what they need to do.

HSE will check how asbestos is managed when visiting a range of buildings – like schools and hospitals – requiring those responsible for managing asbestos risks to ensure they have the right arrangements in place.

Sarah Albon, HSE’s chief executive said: “To keep people safe from the harms of asbestos, a culture of safely managing asbestos is needed in our building industry and among those responsible for buildings.

“Asbestos exposure in Great Britain is still the single greatest cause of work-related deaths due to exposures decades ago.

“Together, we must protect people in the workplace and reduce future work-related ill health.”

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30 01 2024

Monthly HR blog Newsletter – January 2024 | Consensus HR, Herts, Beds

Matthew Chilcott Blog, General, Newsletter #bedfordshirebusiness, #hertfordshirebusinesses, #HRNewsletter, #outsourcedemploymentlaw, #outsourcedhumanresources, bedfordshire, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

In our current Monthly recap HR blog Newsletter – January 2024 we have:

HMRC asks for comments on IR35 | Consensus HR – Herts, Beds
Lone working: protect those working alone | Consensus HR – Herts, Beds
UK judge rules against FCA manager who wanted to work from home | Consensus HR – Herts, Beds
Employment Law Updates – 2024 | Consensus HR – Herts, Beds
Government publishes draft paternity leave regulations | Consensus HR – Herts, Beds
Government amends Equality Act to ensure rights continue | Consensus HR – Herts, Beds

HMRC asks for comments on IR35 | Consensus HR – Herts, Beds

HM Revenue and Customs (HMRC) has launched a consultation seeking views on calculating PAYE liabilities in cases of non-compliance for off-payroll working (IR35).

This technical consultation sets out the mechanism by which HMRC will be able to account for taxes already paid by individuals and their intermediary on income received from off-payroll working when recovering the tax due under PAYE from the employer.

It includes a draft Statutory Instrument (SI), the Income Tax (Pay As You Earn) (Amendment) Regulations 2024, and several items of draft guidance/

Lone working: protect those working alone | Consensus HR – Herts, Beds

At Consensus HR, we are continually asked about many areas of Health & Safety and one area that recently raised its head was Lone working: protect those working alone. This detailed information from the Health & Safety Executive (HSE) gives some very valuable guidance and tools:

Lone workers can be at greater risk of harm as they may not have anyone to help or support them if things go wrong.

Employers should provide training, supervision, monitoring and support for those working alone.

UK judge rules against FCA manager who wanted to work from home | Consensus HR – Herts, Beds

This case took place in Croydon – Case Number: 2302739/2023 and the full Judgment can be ready by clicking here.

Elizabeth Wilson, a senior manager at the Financial Conduct Authority, has had her demand to work from home full-time quashed by a judge, who said the regulator was within its rights to deny the request.

Employment Law Updates – 2024 | Consensus HR – Herts, Beds

Our Chartered Instituted of Personnel & Development (CIPD) have collated all the forthcoming Employment Law changes and Consensus HR by working with its monthly retained clients will be ensuring that all our clients Employee Handbooks and HR Policies & Procedures are kept up to date whilst providing HR & Employment Law support as required.

Did you know? Our monthly retained HR clients for a monthly fee never have to worry about the ever changing Employment Law as their employee handbooks are updated automatically and members of the team informed? If you are interested, give us a non-obligatory call now – 01438 576 750 and talk to a member of the team. Let us, help you to Prevent People Problems.

Government publishes draft paternity leave regulations | Consensus HR – Herts, Beds

We reported previously that the Government had committed to amending the current legislation on parental leave following a consultation to which it had received 185 responses.

Now it has published a draft Statutory Instrument (SI), the Paternity Leave (Amendment) Regulations 2024.

Although the adopted version of this SI has still to be published, none of the main terms are likely to be changed before it comes into force on 8 March 2024.

Government amends Equality Act to ensure rights continue | Consensus HR – Herts, Beds

The Equality Act 2010 (Amendment) Regulations 2023, which came into force on 1 January 2024, maintain the effects of certain retained EU law in relation to several aspects of the 2010 Act.

The new Regulations, which can be found here, amend the Equality Act 2010 to ensure that current rights continue given that the interpretive effects of EU law on the UK’s statute book were removed, at the end of 2023, by the Retained EU Law (Revocation and Reform) Act 2023. Employment Law is always changing and we discuss this on our website.

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29 01 2024

HMRC asks for comments on IR35 | Consensus HR – Herts, Beds

Matthew Chilcott Blog, General, Payrol #bedfordshirebusiness, #consensus hr, #consensushr, #hertfordshirebusinesses, #hwerf, #outsourcedemploymentlaw, #outsourcedhumanresources, #outsourcing, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, Ir35, Small Business, SME, SME's, stevenage

HM Revenue and Customs (HMRC) has launched a consultation seeking views on calculating PAYE liabilities in cases of non-compliance for off-payroll working (IR35).

It includes a draft Statutory Instrument (SI), the Income Tax (Pay As You Earn) (Amendment) Regulations 2024, and several items of draft guidance/

The draft SI contains detailed provisions to be introduced in the Income Tax (Pay As You Earn) Regulations 2003 to allow the PAYE liability that is recovered from the deemed employer to be reduced by amounts of tax already assessed and/or paid by the worker and their intermediary.

It also contains conditions under which it can apply, the mechanics of the recovery and the appeal rights associated with it.

People who work through their own intermediary (eg a personal service company (PSC)) are advised to consider this consultation as are medium and large-sized clients, public authorities, agencies, partnerships and individuals who engage people who work through their own intermediaries.

HMRC suggests that it will also be of interest to HR managers and those who deal with recruitment processes and payroll.

Full details, including the various drafts, can be found on the GOV.UK website and the deadline for submitting comments is 22 February 2024.

HRInform – 26-Jan-24

Our HR comment: HMRC asks for comments on IR35 | Consensus HR – Herts, Beds

Matthew Chilcott FCIPD, ACEL, Owner of Consensus HR comments: “It is good to see that the HMRC are asking for comments in relations to payments in relation to IR35 as this has been a rather complicated system since its introduction. The IR35 – off payroll working rules make sure that a worker (sometimes known as a contractor) pays broadly the same Income Tax and National Insurance as an employee would.

The rules apply if the worker who provides services to a client through their own intermediary would have been an employee if they were providing their services directly to that client.

The Gov.UK website has detailed information in relation to this and who the rules apply to etc.

At Consensus HR, we work with a payroll company that ensures all our clients not only have the best HR & Employment Law services but also payroll support when needed.

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Lone working: protect those working alone | Consensus HR – Herts, Beds

25 01 2024

Lone working: protect those working alone | Consensus HR – Herts, Beds

Matthew Chilcott Blog, General, Health & Safety #bedfordshirebusiness, #Health&Safety, #hertfordshirebusinesses, #lone working, #outsourcedhumanresources, bedfordshire, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

Lone workers can be at greater risk of harm as they may not have anyone to help or support them if things go wrong.

Employers should provide training, supervision, monitoring and support for those working alone.

Our leaflet ‘Protecting lone workers: How to manage the risks of working alone‘ is free to download. It is for anyone who employs lone workers, or engages them as contractors etc, including self-employed people or those who work alone.

The leaflet is supported by our lone working webpages which include advice aimed at lone workers themselves.

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Contact us now

If you run a business and have a team and wish to ensure that you are working to best practice and the law, give us a call now. 01438 576750

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For further information on any of the HR subjects we provide, please click the heading below:

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