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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Increase in claims being withdrawn 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!

Executive People Update

Posted on: July 23rd, 2019 by Ginny Hallam

As part of keeping you in our focus, our exec people update ensures you’re on top of the latest people opportunities, challenges and legislative changes so you’re ready to update the Board.

If you want more insight, give us a call or send us an email and we’ll make sure you’re fully up to speed with all the detail.

40% increase in employment tribunal calls to ACAS

New data in the 2018/19 report from ACAS shows a 40% increase in Early Conciliation calls from individuals who intend to sue their employer at tribunal. That said, of the 39,000 calls of this type, just under 10% ended up in front of an employment tribunal (either because the individual withdrew or settlement was entered into). Watch out for our take on tribunal trends in future updates…

Holiday pay should include voluntary overtime (sometimes)

We’ve been given further clarity on what needs to be paid to employees during their statutory four weeks’ annual leave. Provided the pattern of overtime is ‘sufficiently regular and settled’, the court was clear the overtime pay must be included within the holiday pay calculation of four weeks’ statutory leave – even if the overtime is voluntary.

Living Wage accreditation 

Join Ikea, Nestle and Aviva in securing accreditation from the Living Wage Foundation, if you:

• Pay the ‘real Living Wage’ to employees aged 18 and older (£9.00 or £10.55 in London)
• Provide at least four weeks’ notice of shifts
• Provide an accurate contract that reflects hours worked
• Provide a contract with a guaranteed minimum of 16 hours a week.

Why pay it? 86% of businesses say it’s improved their reputation…

Parental bereavement 

It’s truly tragic circumstances that give rise to such legislation, but The Parental Bereavement (Leave and Pay) Act is due to come into force in April 2020. It affords two weeks’ paid leave for parents who’ve been employed continuously for 26 weeks and lost a child under the age of 18. We’ll be updating our policies on Intelligent Employment to ensure you stay ahead.

Give us a shout if you have any questions and we’d be delighted to chat through with you.

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.

 

 

A proactive approach to probationary periods

Posted on: June 18th, 2019 by Ginny Hallam

So often we hear that it’s only those who lose their jobs or have their probationary period extended that have the privilege of time with their manager to discuss early performance.

The missed opportunity of telling someone they’re great at an early stage of their career can’t be recovered. Whether you call it an early careers chat, probationary review meeting or three/six month catch up – get it in the diary!

Here’s our tips to make it happen:

Don’t leave discussions about performance to the end of the period – start sharing from month one!

Work with a people system that automatically reminds you when you need to have a probationary discussion – find out about ours!

Train your managers to feel confident approaching the conversation and support them with agendas

Ensure that managers wishing to end an employee’s employment can demonstrate they’ve done all they can do to support that individual to succeed

If ending employment, support the individual with next steps to future employment elsewhere

Don’t leave probationary conversations until the last minute and ensure they take place within the probationary period – contractually you might otherwise lose the right to benefit from a shorter notice period if things don’t work out

If you extend the probationary period, ensure you set SMART objectives and offer support and guidance to achieve them – follow up in writing so the employee is clear that their probationary period has been extended and what they need to achieve

Ensure you follow your own policies throughout

There’s a lot to get right with probationary periods – we’re here to help if you’re unsure.