A new year…. A new start? KSA are now hiring HR and Employment Law Associates.

Are you interested in working flexibly? We have an excellent client base up and down the country and are looking for experienced HR and employment lawyers to continue our plans for growth and expansion If you have experience of the full range of employment issues as well as preparing and delivering training then we’d like to hear from you. This role would suit an experienced lawyer or senior HR practitioner with least 5 years’ experience. Want to find out more …..? Visit www.kateshepherdassociates.co.uk, or for an initial confidential chat give us a call on 0845 9000899 E-mail hello@kateshepherdassociates.co.uk with your CV and tell us how you think you fit the bill

Basic Steps to Help You Keep On Top of Sickness Absence

We are often surprised at the number of small employers who have no system for recording sickness absence.  Some will ensure that they ask for medical certificates if the period of absence exceeds 7 calendar days (in accordance with the Statutory Sick Pay (SSP) rules) but many do not have any sort of recording tool for short-term absence.

The problem for employers who do not record absence is that they find themselves in a difficult position if and when they feel they have a problem with an employee taking too much time off.  If this has not been recorded, all they have is a general feeling and a problematic lack of evidence.

Sickness recording systems do not need to be complex. All that is required is a simple form to record the dates of absence and the nature of the illness/injury.  A simple spreadsheet can then be used to record it for each employee and the form can be filed in their personnel file (make sure it is kept securely).  It is then just a case of having a look at the spreadsheet on a regular basis (e.g. quarterly) to see if anyone is taking a lot of time off.

If you feel one of your employees is taking too much time off sick, you are then able to address this with them by showing them the record and having a discussion about it.  At this stage you would deal with it informally to try to find out whether there may be any underlying cause (which could indicate a disability and a need to tread carefully), or whether they are just the sort of unlucky person who is frequently sick (or perhaps the sort or person who goes off sick at the slightest snuffle, or even perhaps someone who "swings the lead").  The outcome of the meeting would normally be an informal warning to explain that you expect an immediate, substantial and sustained improvement in their attendance or you will need to consider commencing disciplinary proceedings on the grounds of capability (or under a separate capability procedure if you have one).  Unless you had clear evidence you would not be questioning whether the sickness absence is genuine, it would be a case of explaining that the business is unable to sustain this level of absence which is why you need to address it.

That is often enough to nip the problem in the bud.  If staff know that you are going to address their sickness absence, they may well think twice before calling in sick unless absolutely necessary.

Other tools that can help change a lax sickness absence culture are:

• return to work interviews every time someone comes back from a period of sickness absence no matter how short
• strict rules about phoning in when they are off sick (e.g. phone calls to the boss, rather than a message via a colleague, or a text message)
• paying SSP only (although you would need to ensure you were paying in accordance with any contractual obligation)

Right to Time Off to Accompany Partner to Ante-Natal Appointments

The partner (male or female) of a woman expecting a baby will be entitled to unpaid time off in order to accompany her to up to two ante-natal appointments.  The employee does not need to have worked for you for any particular period of time, it is a right that they enjoy from day one.  

There is no minimum notice requirement in the legislation, but it does state that an employer will only be liable where it has "unreasonably refused" a request for time off.  This suggests that a tribunal may find that an employer has not unreasonably refused a request where it has been presented at the eleventh hour and it is not practicable to find cover for the time off requested at such short notice. 

Whilst some employers may feel that they do not wish to advertise this new entitlement to their staff, they may wish to consider including it in their staff handbook and encourage employees to make their request in a particular format and by giving as much notice as possible.  If an employee then breaches this written policy and is refused their request, it is unlikely that the refusal would be found unreasonable in all the circumstances.

Government Aims to Bolster Apprentice Pay

In recent years the number of apprenticeships has risen sharply and they have become more attractive to employers as the previously tough contractual protections afforded by apprenticeship agreements have been watered down.  As long as the apprentice contract contains appropriate clauses it can be treated in a similar vein to other employment contracts, with apprentices needing two years' service, like other employees, to be able to claim unfair dismissal.  Previously it was almost impossible to make an apprentice redundant without breaching their contract; that is no longer the case.

Apprentice pay is another factor that some employers will consider attractive.  An apprentice is currently only entitled to £2.73 per hour*, which reflects the fact that they are benefiting from on the job training as well as working.

However, the Business Secretary, Vince Cable, recently announced his wish to bolster apprentice pay in order to make the apprenticeship route more attractive to young people.  He has asked the Low Pay Commission to consider how apprentice pay could be improved, suggesting that it be brought in line with the 16 and 17 year old National Minimum Wage rate in October 2015.  That rate is currently £3.79 per hour.

(* N.B. Apprentices aged 19 or over are entitled to the regular National Minimum Wage rate for their age group after the first year of their apprenticeship.  They can be paid the apprentice rate during the first year.)

Funding available to help your business to grow

The Government's Growth Voucher programme allows you to receive up to £2000 towards strategic advice to help grow your business.

This could be put towards KSA advice and assistance - perhaps a one off HR project or staff development, updating your contracts, an HR Audit or any other strategic HR planning.

If you have:

• 49 employees or less
• Are registered in England
• Have been trading for at least 1 year and
• Have not had any paid for strategic business advice in the last 3 years

For more information visit Growth Vouchers or speak to one of our team.

Are You Paying Enough for Holidays?

As anticipated in January's update, the European Court of Justice has followed the Attorney General's opinion in determining that workers' holiday pay should reflect any additional payments they would normally receive had they been working.  This includes paying commission or compensating for the lost opportunity of earning commission whilst on holiday.

Under the Working Time Directive, the aim is to ensure that staff are not deterred from taking leave.  In this case (British Gas v Lock) Mr Lock was a salesman on a basic salary with variable commission which was paid a month in arrears.  When he took leave he would be paid his basic pay whilst he was away, plus any commission owing from the previous month, but then he would lose out on commission the following month due to the fact that he was not selling whilst on holiday.

It has been left to the national courts to determine how this pay should be calculated, and it is likely to be some time before our Working Time Regulations are updated accordingly.  In the meantime, now that we have this ruling, employers should consider taking steps to address the issue as they could face costly claims for back pay at some future point.

Many employers already have to work out holiday as an average over the 12 weeks preceding the holiday period (i.e. where employees have variable hours and/or pay), so it seems sensible to conclude that a similar averaging approach to commission would be likely to meet these requirements.

How will the Ban on Zero Hours Contracts Affect You?

In the recent Queen's speech, the Government announced its intention of "...cracking down on abuse in zero hours contracts".  It has subsequently published the Small Business, Enterprise and Employment Bill 2014, which will now start its progress through the parliamentary process.

The Definition of a zero hours contract in the Bill, to paraphrase, is one where the undertaking of any work under the contract is conditional on the employer offering work, and where there is no certainty that the employer will offer any work.  The Bill goes on to say that any clause in a zero hours contract which prohibits the employee from doing work for anyone else, or where they have to obtain permission from their employer to do so, is unenforceable.

So there is no problem with having a zero hours contract, as long as there is no exclusivity clause in the contract.

The use of casual contracts, therefore, is unaffected.  This is where the work is very ad hoc and there is no obligation on the employer to offer work and none on the employee to accept any work offered.  Typically these are used for plugging gaps in staffing due to illness or holidays.

It also seems that any employers who want a loop-hole, can get round this restriction by guaranteeing a minimum amount of work under the contract - perhaps just one hour per year! That would mean that it would not be a zero hours contract as defined, so the ban would not come into effect.

It seems likely that there will be regulations coming out at some point to beef up the restrictions to some extent, and the Bill does leave that possibility open.  So watch this space for more detail as it emerges.