Thinkin HR

17/04/2024

Managing Long-Term Sickness Absence & 5 Hidden Business Costs of Long-Term Absence!

Can employers insist employees return to work?

Often because there is a limit to the entitlement of statutory sick pay (SSP) which an employee receives (28 weeks), this leads to the myth employee sickness ‘entitlement’ expires at this point and the employee has to come back to work or their employment contract ‘expires’ but this isn’t the case.
When managing long-term sickness, employers must tread carefully as they have a duty of care to employees when they are at work and a duty of care when they are absent due to sickness. Employers should not try to override the advice of medical practitioners and insist the employee return to work before they are able.

How should employers be effectively managing long-term absence?

1. Regular contact

Keeping contact with an employee during a long-term sickness absence is not harassment; it is part of your duty of care and can make a real difference, especially in cases of absence that are related to mental health.
Arrange a time each week to contact your employee to discuss how they are feeling, if there has been any change to their condition and also to bring them up to date with any developments in the business.

2. Referral to occupational health and seeking consent for a medical report
Employers are not there to medically assess their staff. If employee sickness is long-term, involves absence frequently due to an underlying medical condition or has recently been diagnosed with a medical problem and fears how this may impact their ability to carry out their role, a medical certificate is vital!
A medical report from a GP, occupational health, or another medical practitioner, such as a consultant, physiotherapist, mental health specialist and so on, can often give an insight into the changing medical needs of the employee.
This can often be the difference between someone getting early support to continue in their role via reasonable workplace adjustments or being ‘written off’ with dismissal and the employer making a hasty decision that could also leave them exposed to a disability discrimination claim.

3. Employee Assistance Programmes (EAP)

There is mounting criticism that employers are not doing enough to boost the well-being and health of their workforce. Whether that is by failing to properly explore the possibilities of workplace adjustments or failing to proactively manage employees who are on long-term sick leave.

One way employers are aiming to combat this is by investing in Employee Assistance Programmes (EAPs) for their employees.

EAP services can provide confidential advice and support in a wide range of areas, such as: Family- carers, child custody, relationship problems
Health- both physical and mental health, many offer counselling services to assist with combating symptoms of depression and anxiety, bereavement, and stress.

12/04/2024

Annual Leave and Zero Hours Contracts – Employers Guide to the Annual Leave Calculation Changes

Irregular hours workers:

When we talk about those with irregular working hours, we are talking about what we call ‘atypical’ contract types, such as contracts where there is no guarantee that work will be offered or where there are no set contractual hours of work, e.g., those working under zero-hours contracts, ad-hoc, or a casual employment contract, and so on. To be classified as an irregular-hours worker, the contract would state that in each pay period (i.e., weekly or monthly paid), the number of paid hours of work is variable or non-guaranteed.

Part-year Workers:

For the purposes of the upcoming holiday pay calculation changes, part-year workers are those whose contracts state that they are only required to work part of an annual leave year. There are periods during that year (of at least one week) when they are not required to work and for which they are not entitled to be paid.

This will include types of seasonal workers and some term-time only contracts.

How is the annual leave calculation done for these types of contracts?
For annual leave years beginning on or after April 1, 2024, an accrual method will be used to calculate holiday entitlement. This accrual method is based on a percentage (12.07%) of the actual hours worked in a pay period.

Holiday leave years beginning in January will not see these changes take effect until January 2025.

Where does the 12.07% come from?

All workers in the UK are entitled to a minimum of 5.6 weeks’ holiday leave(28 days). When working out how much holiday an irregular or part-year worker has accrued, it is important to base this accrual on the statutory minimum to be legally compliant.

In a calendar year of 52 weeks, there are a total of 46.4 working weeks (52 minus 5.6); therefore, 5.6 weeks of leave is 12.07% of 46.4 working weeks.

Please note that if your contracts of employment provide for more than 5.6 weeks holiday annually, the percentage you use to calculate holiday accrual for irregular or part-year workers may need to be adjusted.

I have employees on zero-hours contracts; how is their annual leave entitlement calculated using the 12.07% method?
Let’s take an example:

Bob is working under a zero-hours/ casual employment contract and is paid monthly. The contract states there is no guarantee of work; his hours vary from month to month, and there are some weeks where he is not required to work at all.

The employer offers an annual entitlement of 5.6 weeks’ holiday.

In May, Bob works 85 hours. To work out how much holiday Bob has accrued in May, we calculate 12.07% of the hours he has worked.

85 ÷ 100 = 0.85
0.85 x 12.07 = 10.2595
Round up or down to the nearest hour: 10 hours of annual leave accrued in the month of May.

How Is Holiday Pay Calculated For Those Working Irregular Working Hours?
There are now two options here:

1. 52-Week Reference Period
The annual leave calculation is done using the average pay from the previous 52 weeks where work has been carried out and pay received. This excludes weeks where sick pay or other types of leave have been taken, such as maternity leave.

An employer may need to go back more than 52 weeks to obtain 52 weeks’ worth of paid weeks, but they needn’t go back further than 2 years (104 weeks). Employers will go back to the contract start date for workers who have recently joined the company and who have not yet carried out 52 weeks of paid work.

To find out the average weekly pay for an irregular-hours worker who wishes to book annual leave, the employer adds up all the pay received for each of the 52 weeks and then divides the total by 52 to get the average pay. This is the pay the worker will receive for a week of annual leave.

For example, if the total pay across the 52-week reference period was £15,000, a week of holiday pay would be £15000 ÷ 52 = £288.46.

This annual leave calculation would need to be done each time the individual requested holiday leave.

2. Rolled-Up Holiday Pay (RUHP) Is Only For Leave Years Commencing On Or After April 1, 2024.
Rolled-up holiday pay allows employers to include an amount of pay with each payslip to cover an individual’s holiday pay rather than paying them for their holiday when they take it.

To work out the amount of RUHP in a particular pay period, the employer calculates 12.07% of the total pay the individual has received in that pay period.

For example, Sam is paid £11 per hour and is paid weekly. From May 1 to May 7, she works 42 hours. In Sam’s pay that week, her holiday pay for that week will need to be added to her payslip.

We work out her total pay for the week: 42 x £11 = £462.

We work out 12.07% of the total pay: £462 ÷ 100 = £ 4.62 x 12.07 = £55.76.

Sam receives an additional £55.76 in rolled-up holiday pay on her payslip for that week.

Can I now revert to using RUHP or the 12.07% method for annual leave accrual if I haven’t used it before?

This will amount to a contractual change, so it is not something that employers should unilaterally impose; otherwise, you run the risk of a claim.

14/07/2023

14/07/2023

HSE inspections target woodworking businesses to tackle occupational lung disease during a June offensive

“Wood dust can cause serious health problems. It can cause asthma, which carpenters and joiners are four times more likely to get compared with other UK workers, as well as sino-nasal cancer. Our campaign aims to help businesses whose workers cut and shape wood to take action now to protect their workers’ respiratory health.”

Wood dust is not the only dust to cause major issues; takeaways and bakeries were recently targeted owing to flour dust which can cause major respiratory and musculoskeletal illnesses.

We can assist you with Health & Safety and have training and a full support service.

Please use the link below to contact me for a discussion and meeting :

https://hr.avensure.com/quick-quote-awilk/

14/07/2023

One of my clients asked this :

I have an employee who is underperforming they have I feel the capability but something is going wrong, we are a kitchen sales company. could you please advise a ten-step performance management plan to monitor and try to improve performance?

Step 1: Identify Performance Gaps
Assess the employee's current performance and identify specific areas where they are underperforming. Gather objective data, such as sales figures, customer feedback, and performance metrics, to support your evaluation.

Step 2: Communicate Expectations
Clearly communicate your expectations to the employee regarding their performance standards, goals, and targets. Make sure they understand what is expected of them and how their performance will be evaluated.

Step 3: Investigate the Root Cause
Engage in a conversation with the employee to understand the underlying reasons for their underperformance. This could involve discussing any challenges they are facing, personal issues, lack of training, or unclear job responsibilities.

Step 4: Develop a Performance Improvement Plan (PIP)
Collaboratively create a performance improvement plan with the employee. This plan should outline specific actions, milestones, and timelines for improving performance. Set realistic and measurable goals that are aligned with company objectives.

Step 5: Provide Support and Resources
Identify any training, coaching, or resources that the employee may need to enhance their skills and knowledge. Ensure they have access to the necessary tools, guidance, and support to meet their performance goals.

Step 6: Monitor Progress
Regularly review and monitor the employee's progress against the performance improvement plan. Schedule frequent check-ins to discuss their achievements, challenges, and any adjustments needed to the plan.

Step 7: Offer Constructive Feedback
Provide ongoing feedback to the employee, both positive and constructive, to help them understand their strengths and areas for improvement. Be specific, objective, and provide examples to support your feedback.

Step 8: Recognize and Reward Improvement
Acknowledge and appreciate any progress or improvements made by the employee. Recognize their efforts and provide appropriate rewards or incentives to motivate them to sustain their performance.

Step 9: Address Performance Concerns
If the employee fails to make sufficient progress despite the support and opportunities provided, have a candid conversation with them to discuss the consequences of continued underperformance. This could involve disciplinary actions or further training and support.

Step 10: Evaluate and Document
Regularly evaluate the effectiveness of the performance improvement plan and document all discussions, feedback, and outcomes. This documentation will be essential for future reference and potential HR procedures.

14/07/2023

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14/07/2023

TUPE (Transfer of Undertakings (Protection of Employment) Regulations) is a set of UK regulations that safeguard the rights of employees when a business or part of a business is transferred from one employer to another. TUPE applies to most business transfers, including mergers, acquisitions, and outsourcing arrangements. Here's an overview of the key points and your responsibilities as the new employer:

Automatic transfer of employees: Under TUPE, eligible employees who are engaged in the business or part of it being transferred will transfer automatically to the new employer on their existing terms and conditions of employment. This includes full-time, part-time, permanent, and some temporary employees.

Preservation of employment terms: The terms and conditions of employment, such as salary, holiday entitlement, length of service, and employment benefits, are generally preserved after the transfer. The new employer cannot make changes to these terms solely because of the transfer.

Information and consultation: As the new employer, you have an obligation to inform and consult employee representatives (e.g., trade unions or elected employee representatives) about the transfer. This should be done in a timely manner before the transfer takes place.

Employee liability information: The outgoing employer (seller) must provide you, as the new employer (buyer), with written employee liability information. This includes details of the employees transferring, their employment terms, and any outstanding employment disputes or collective agreements.

Protection against unfair dismissals: TUPE provides protection against unfair dismissals related to the transfer. Employees cannot be dismissed solely because of the transfer unless there are genuine economic, technical, or organizational (ETO) reasons that necessitate changes to the workforce.

Information and consultation on proposed measures: If you are planning to take any measures that will affect transferring employees, such as redundancies or significant changes to terms and conditions, you must inform and consult with employee representatives about these proposed measures.

Liability for pre-existing obligations: As the new employer, you assume responsibility for the employees' existing employment rights, including liabilities for unfair dismissal claims, discrimination claims, and other employment-related claims that arose before the transfer.

Retention of existing collective agreements: Any collective agreements in place with the outgoing employer will continue to have effect with the new employer until they expire or are renegotiated.

It is important to note that TUPE is complex, and each transfer situation can have unique circumstances.

As Employment Law experts we can ensure you get this process right and are protected from any complications.

Please contact me to discuss:

Adrian Wilkinson
Tel : 0161 509 7481
Mob : 07359172432
[email protected]

14/07/2023

Defending Unfair Dismissal Claims in the UK - The Legal Journey of a Good Employer

As a responsible employer in the UK, it is natural to feel apprehensive when facing a claim for unfair dismissal. You have worked hard to build a successful business, hire the right people and create a positive workplace culture. However, despite your best efforts, there may come a time when you have to terminate an employee's contract due to misconduct, poor performance or other reasons. When that happens, you need to be prepared to defend your decision, follow the correct legal procedures and protect your business interests.

Here is a step-by-step guide on how to defend unfair dismissal claims in the UK, and ensure that you have a fair chance of success:

Step 1: Review your documentation

The first step is to check that you have followed all the necessary legal procedures, such as providing a valid notice period, holding a disciplinary hearing and allowing the employee to appeal. You also need to make sure that your decision to dismiss was based on valid reasons, such as gross misconduct, redundancy or poor performance, and that you have clear evidence to support your decision.

Step 2: Seek legal advice

If you receive a claim for unfair dismissal, seek legal advice as soon as possible. A good employment lawyer will be able to guide you through the process, assess the strength of the claim, and suggest the best course of action. They may also be able to negotiate a settlement or mediation before the case reaches a tribunal.

Step 3: Prepare your case

If the case proceeds to a tribunal, you need to prepare your defence. This may involve gathering evidence, such as witness statements, documents and records, and presenting them in a clear and logical way. You also need to identify any weaknesses in your case, such as gaps in evidence or procedural errors, and address them upfront.

Step 4: Attend the tribunal hearing

At the tribunal hearing, you need to present your case clearly and confidently, while respecting the rules of the court and the rights of the claimant. You may need to answer questions from the tribunal, cross-examine witnesses, and argue your case based on legal precedents and statutes. You should also be prepared to negotiate a settlement or alternative resolution, if appropriate.

Step 5: Review the outcome

After the hearing, you need to review the outcome, whether it is a judgment, settlement, or appeal. If you have successfully defended the claim, you can learn from the experience, refine your policies and procedures, and continue to grow your business with confidence. If you have lost the case, you may need to assess the reasons why and seek further legal advice on how to proceed.

Conclusion

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