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Posts for November 2009
Xmas temps
November 26, 2009
We are moving towards the time of year when many people take on Christmas temps (or are taken on as temps), so we thought we would give you some pointers on the legal side of temp work.
As we enter the time of year when many people take on extra help for Christmas, use our top tips to help you get legal side of employing temps right:
- Temps can be employed by an agency or directly by the organisation that uses them. If you are not sure who the employer is, it is usually the person who pays the temp their wages.
- The end client can be liable for discrimination claims even if an agency is the employer, since temps can be an employee of the agency AND a worker for the client at the same time. These rights do not require any particular length of service.
- Temps accrue rights in line with service, just like any other UK employee, which means they are building up rights to National Minimum Wage (NMW) and statutory holiday from day one.
- Temps are entitled to statutory sick pay (SSP) provided they pay national insurance.
- Temps with more than four weeks’ service are entitled to statutory notice of one week.
- It is possible to contract with temps on a weekly basis, so that you give notice each Monday to terminate each Friday (and thus there is no need to give notice at the end of the temporary assignment). If you want to do this, take advice.
- After one month's service, temps have the right to a written statement of particulars of employment, and their temporary status should be set out clearly in that document. Theoretically that statement should be issued no later than two months after the start date, but it is always a good idea to get this document out as early as possible.
- If you make a mini fixed-term contract and then change your mind, you may be liable to pay the balance of the term. Be careful when recruiting temps that you do not contract for more time than you mean to.
- Continuous service has a complex set of rules. For example: if you recruit a temp for, say, four weeks, then another four weeks with a gap in between you can find that the week in between does not ‘count’ for continuity but does not break it either.
- Temps with less than one year's continuous service do not have unfair dismissal rights but they do have a full set of discrimination rights. Whilst there is currently government consultation on giving temporary workers more rights, no changes have yet been made and temps have no specific right to benefit from the same terms and conditions as their permanent colleagues.
Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060
Website : www.irenicon.co.uk.
You can follow Annabel on twitter – http://twitter.com/AnnabelKaye and check our regular articles and news throughout the autumn on our blog site - http://irenicon.wordpress.com/
How to change employee agreements – without disagreement
November 18, 2009
Employers need to change their employees’ contracts for a variety of reasons – often in today’s hard times, to help a business survive.
Once you know you need to change an employment contract, you need to know how to do it properly - unfortunately, contract changes done badly could be the downfall of a business.
Visits to online business forums will find numerous employers looking for help on how to change a contract. Invariably, forum members offer an array of advice, including enthusiastic suggestions the employer just goes ahead: “You can do this because you’re the boss.” But there’s a bit more to it – such as the law.
To understand what changes you can and can’t make, start by considering what a contract means. A contract is an agreement between two parties that governs an activity – in this case, a job: and includes specifics about, among other things, what work will be done, conditions and pay. For anything to change, employer and employee both need to agree. So it’s entirely wrong to think that anyone, boss or otherwise, can simply change a contract off their own bat.
Some contracts contain a clause that provides one party with the right to make changes without the other party’s consent. But even this has to be used in the correct, and rather limited, way – bosses can’t just increase working hours or reduce pay. These clauses can only be used to clarify existing terms, and make the odd tweak, not effectively to rewrite the agreement.
If you need to modify a contract, the most sensible option is to ensure there are clear clauses in your standard employee contract that allow for changes. These could include the right to introduce a shorter working week or temporary lay-offs.
Plan in advance – by getting comprehensive contracts in place, either at the time of appointment, or via agreed changes to the contract. Employees can’t be expected to freely agree to these changes during the contract, which is why it is wiser to get it right before staff start work. However, all is not lost if you haven’t acted in advance and need to make changes now.
Consider what is typically an annual change to the contract anyway – a pay rise. As one term of the contract – the pay – will be changing, there is no reason not to make other changes at the same time. You still need agreement (as does a pay rise, but employees don’t often protest about these). But if you’re offering a pay rise you may find staff are open to other contract changes to the contract as a condition for the increase (however modest).
Done properly, it can be very easy - even for employees on minimum wage. An offer to improve pay a couple of months early won’t cost the business much more, but the improvements to the contract could more than return the extra outlay.
Technology gave us the Terminator…
November 11, 2009
New technology can prove a blessing for small business owners, saving them much-needed time and money. But the arrival of shiny new machines may not be all good news. Fiddly instructions, baffling electronic signals and disruption to working patterns can often be met with resistance by even the most loyal of staff.
Tesco recently announced the opening of their first entirely self-service shop in Northampton, with self-scan tills manned by a single member of staff. The company has faced criticism. As the UK’s biggest food retailer, with 4,300 stores worldwide, the understandable concern from employees is that, along with their traditional tills, they will become obsolete themselves.
This might strike you as a problem for corporations, not small firms. Sure, the first British small firm with no humans in it may be a long way off. But every SME that uses machinery or computers faces similar decisions to a megacorp - how best to weigh up the pros of tech advances, such as time and cost savings, against the cons.
Typically, for small firms this means not mass sackings, but extra training and reorganising disgruntled employees, keeping up complex, probably expensive systems and, finally, loss of personal customer service, a precious advantage small firms have traditionally held.
If you are considering introducing new tech into your business, one way to proceed is to let your staff know about the plans for change. The right approach before you implement a new action plan can calm employee fears, motivate people and improve their performance. By law, businesses with 50 or more employees who are facing major change must set up an information and consultation agreement if a significant percentage of employees asks for one. The firm’s owners should then inform and consult their employees before implementing changes. And in a smaller firm you may be able to get useful feedback from every employee. Implementing an information and consultation policy allows you to communicate effectively with employees and meet legal requirements - proving the point that human interaction can be irreplaceable, at least in some business situations.
Read the Law Donut’s advice on information and consultation with employees.
Managers’ common mistakes: which one could land you in court?
November 05, 2009
Most new business owners are too busy to read a lot of legal jargon or ‘business best-practice’, and as a result, can make some, er, interesting decisions about hiring and firing staff. We see all kinds of queries and misconceptions on our Irenicon hotline.
Here are answers to some of the most common managers’ questions:
1. “Surely small businesses are exempt from employment legislation?”
Sorry, no. There were limited exemptions for small businesses, but they have slowly been taken away, and nowadays small businesses are no more exempt from employment law than from any other law.
2. “If I don’t have any staff I can’t have any employment law problems - can I?”
‘Fraid so. The minute you pay someone to do some work for you, whether or not you view them as an employee, you can find yourself with financial and legal obligations. For instance, under PAYE, even self-employed contractors with their own limited companies can turn out to be your responsibility when it comes to tax pay – you could find the taxman coming to you for their tax and National Insurance. Check the specifics of your firm’s arrangements with HMRC’s free employer’s helpline on 08452 6070143. See points 3 and 4 too.
3. “How can I have responsibilities to people I’ve never hired?”
All workers have rights. Even people whom you have never taken on as employees. Whoever takes on a job for you automatically gets: protected from discrimination, entitled to the minimum wage, allowed companions at disciplinary/grievance meetings, and covered by working time regulations (holiday and hours worked in a week), as well as health and safety law. Just for starters. Get free advice from ACAS on 08457 47 47 47.
4. “Can it be true that someone else’s employees can be my legal problem?”
Yes. Not only do they have potential rights against you as workers (see above), but they can become your employees (or a drain on your cheque book) even if you have never met them - if you find yourself tangled up in the Transfer of Undertakings Regulations when you change your service provider. The rules on transfers (known as TUPE regulations) are complex and can seem irrational to the uninitiated. They also affect you and your staff if you lose a contract yourself. If you are buying services (even cleaners) or selling services you should take advice before you enter into or terminate a contract to avoid expensive mistakes. Again, call ACAS on 08457 47 47 47.
5. “Don’t my people have to work for a certain time to have rights?”
Not usually. Employees’ contractual rights begin the minute you offer them a job. The law specifically prohibits discrimination against part-timers, and the days of lengthy qualification periods are long gone. Many new, “expensive” rights such as discrimination start before an interview. Contractual rights begin when you make an offer, and ordinary unfair dismissal rights begin at one year’s qualifying service (which may be earlier than you think if you had a Saturday worker, or contract worker whose pre-employee work with you service will probably count towards their first year.
6. Surely if I am trying to do the right thing and I am fair I can’t get into trouble?
Employment law is increasingly concerned with how things are done. It ain’t what you do so much as the way that you do it. When it comes to discipline, dismissal, redundancy and many other areas, it is vital to adopt the right method or you can find yourself facing an unfair dismissal. There is no exemption for small employers and no “get out of jail free card” for new businesses. Even if you have never heard of a particular law, it applies to you.
7. “All these workers’ rights’ are very depressing - what is the point of having workers and staff?”
The point of employees is to increase your profitability. Many bosses spend more time choosing their company car than they do recruiting and contracting their staff. If you don’t chose the right people and contract them in the right way, you are more likely to run into trouble - just like picking a Porsche with your eyes shut. You can manage and improve performance in people and contract sensibly for what you need - but it is far easier to do this at the beginning before you run into trouble.
8. “Staff can just do what they want these days anyway - it’s not fair.”
Once you’re produced contracts and handbooks, communication is the key to performance management. Many employers ring our hotline when they are disappointed with their staff and convinced that an employee is being deliberately unhelpful. This is sometimes the case, but as often as not, there is a problem with communication. Wherever possible, try to be clear and consistent about what you want from a worker. A large part of a contract of employment is ’custom and practice’. Employers who tolerate bad performance over time can find it extremely difficult to raise standards again - it can be done, but it is so much easier to keep things right in the first place.
Annabel Kaye is managing director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050
Fax: 08452 303060 Website: www.irenicon.co.uk.
You can follow Annabel on twitter – http://twitter.com/AnnabelKaye
Irenicon offer 20 mins free advice to new callers.
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