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Tribunal trends – our views

Posted on: August 13th, 2019 by Ginny Hallam

Our tribunal advocate, George Miller, explains the tribunal trends we’ve seen in the last year (and how to avoid being on the wrong side of a claim).

Poor claims designed to elicit cash

Lack of evidence and bringing every claim under the sun are common. But, tribunals are wise to employees manoeuvring employers into defending claims without the prospect of success. They’re striking out claims and issuing orders for employees to pay money into the tribunal to continue with their claim.

Low value claims

There’s been an increase in claims for smaller amounts of cash – like holiday and notice pay for example.

A long time for cases to be heard

15 months in some cases for the claim to be heard at tribunal. Tactically lengthy waiting times can take the wind out of an employee’s sails, but often you’re as keen to dispose of the case as they are!

Increase in claims being withdrawn

We’re increasingly successful in encouraging employees to withdraw their case or settle for low values. It’s still only 10% of cases that ultimately end up going to a full hearing.

Lack of fees make tribunal claims attractive to disgruntled employees, but there’s plenty you can do to avoid one landing…

Train – great managers to have great conversations
Talk – nip issues in the bud early to avoid escalation and surprises
Respect – deliver consistent decisions in accordance with company values
Culture – drive great behaviours and trust so employees know you’re trying to get it right
Processes – set, update, and communicate sound processes to support challenging employment issues
Performance – communicate frequently and follow up often
Evidence – keep records on a great people system (they’re your first defence)
Precedents – don’t settle unless you really need to (if you’re known to pay out at the sniff of a claim you can often find plenty more landing your way).

Watch this space for news on when tribunal fees are set to be introduced again (no news yet!).

Secret recording may be gross misconduct

Posted on: July 30th, 2019 by Ginny Hallam

It’s rare that recordings of conversations during employment are encouraged. They change the atmosphere, take a long time to transcribe and can be difficult to navigate. With technology making secret recordings by employees more common, a helpful decision for employers has found that covert recordings can amount to gross misconduct.

If you don’t have ‘recording without permission’ listed as gross misconduct in a policy, you’ll need to consider the following before deciding to dismiss.

Did the employee:

record the conversation to entrap or manipulate you?
record confidential information?
know that recording is not allowed?

If the answer is ‘yes’ to any of these, then it’s likely to amount to gross misconduct.

In practice, avoid arguments over whether a secret recording is gross misconduct or not by making sure there’s a policy that says as much (and make sure your people are aware)!

If you’d like to chat through with us in more detail, just click here!

Changes to IR35

Posted on: July 4th, 2019 by Ginny Hallam

Disclaimer: what you’re about to read should come with a health warning! Tax is a tricky beast, so we’ve tried our best to make this as straight-talking as our usual updates…don’t say I didn’t warn you!

IR35 states that if you’re working with a self-employed individual in such a way that they’d usually be an employee of yours (were it not for the company under which they operate), then they should be paying PAYE and NICs.

From April 2020, if you pay the individual’s company (rather than the individual directly) for work they’ve done, you may be responsible for PAYE and NIC deductions in respect of their fees (and HMRC penalties if you get it wrong).

From April 2020, if you’re a medium or large company* you’ll need to:

• establish whether, if you disregard the company under which the individual operates, the individual would really be an employee of yours;

• notify the individual and any company supplying them such as a recruitment business of your decision as to their true employment status and your reasons for that decision;

• ensure each layer of the supply chain involved with that individual is aware of your decision as to their status and the reasons for it;

• be clear on your process for resolving a dispute with the individual in respect of their status;

• deduct PAYE and NICs (if you pay the individual through their company) bearing in mind you will be charged interest and penalties by HMRC for failure to do so.

Small steps…

At the moment, we’re waiting for the final draft of the legislation. In the meantime…

• audit your workforce and contracts to identify any individuals who are supplying services through their company;

• use HMRC’s Check Employment Status for Tax to identify the status of individuals you pay through their company;

• discuss with them the changes to the regime and your thoughts on their status;

• consider how you’re going to make the appropriate deductions to HMRC where necessary;

• consider your on-boarding process for suppliers and how you’re going to ensure that deductions are made as appropriate;

• update your consultancy agreements to ensure the appropriate provisions are incorporated to deal with these changes. Click here and we can help you with that!

Watch this space!

*P.s – if you’re wondering, medium and large businesses are those which satisfy two of the following: turnover of more than £10.2m / have a balance sheet of more than £5.1m / have more than 50 employees.

Apprenticeship agreements – use them!

Posted on: May 16th, 2019 by Ginny Hallam

Apprenticeships are on the increase. Although the apprenticeship levy is relatively recent concept, apprenticeships have been around for years – along with laws that govern how apprentices are treated.

Without the right agreement in place, you could find yourself tied up in old, inflexible, costly laws and stuck with a poor performing apprentice until they qualify.

Here’s how you create an apprenticeship agreement which is subject to the employment laws you’re used to:

• Ensure your agreement contains all of the usual legally required employment information. Include a statement of the skill or job they’re being training to do, that the relationship is governed by English and Welsh laws and has been entered in connection with a qualifying apprenticeship framework.

• It’s always worth including a probationary period to make clear that early employment will be subject to a shorter notice period if things don’t work out.

• If you’re able, set out college hours so it’s very clear what time can be spent away from work.

• Set out expectations in respect of exam passes and how quickly you consider qualifications should be achieved. Explain the consequences if they don’t meet these expectations.

• If you’re a levy paying employer, don’t ask for a contribution towards training costs from the apprentice or a repayment of training costs if they leave – it’s unlawful to do so.

Get in touch if you’d like to discuss your apprenticeship agreements with us in more detail.

Annual update to employment contracts and employee guides

Posted on: March 14th, 2019 by Ginny Hallam

In the last 12 months we’ve reported on five key changes to employment contracts, and we’ve also pepped up our policies to ensure they’re relevant and robust.

Piecemeal changes are seldom a good idea, so we’ve highlighted the changes and tweaks we’ve made to our employment contracts and employee guides below, and recommend you do the same.

Employment contacts

PILON clause – all PILONs (payments in lieu of notice) are now taxable. Including them in the contract gives additional flexibility on exit – there’s no longer a good reason to exclude them.

Data protection consents – the law’s changed and so have our contracts. They now contain consent to process sensitive personal data, handle references, send information outside of Europe and a commitment to abide by the data protection policy.

Holidays – it’s no longer ‘use it or lose it’. Your contracts need to require individuals to use their entitlement throughout the year and ensure there’s a contractual requirement to do so.

Fit for Work service – no longer exists. Any reference to the service needs removing.

Pensions – don’t forget the new contribution levels for auto-enrolment from April this year.

Employee guides

Data protection – the law’s changed so our employee guide reflects reality. It now covers obtaining express written consent to provide references and sharing personal data.

References – another GDPR revision, this policy sets out that consent will be required if references are to be provided (if you use our employment contracts you’ll be on the right track).

Be happy and healthy – updated to reflect recent case law, it requires employees take at least 20 days’ holiday a year and acts as your reminder to tell them if they’re not doing so.

Working outside of employment – the new trend of ‘side hustling’ looks here to stay. This policy protects your business whilst embracing an evolving workforce’s activities outside of work.

Out and about – replaces our ‘actions when off site or outside work policy’. Additions strengthen protection against findings of vicarious liability where you could find yourself liable for employees’ acts.

Click here if you’d like our support in making any of the suggested changes above.