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Blog posts in Employment law

A complete guide to criminal record checks

August 15, 2016 by Guest contributor

A complete guide to criminal record checks{{}}DBS stands for the Disclosure and Barring Service; it was formed from the merger of the CRB (Criminal Records Bureau) and ISA (Independent Safeguarding Authority) on 1st December 2012, as a result of changes made to the Protection of Freedoms Act (2012).

The DBS conducts criminal record checks on potential employees on behalf of employers across England and Wales. Once employers have this information, it allows them to make informed and safe decisions regarding recruitment, especially important if the role involves working with children or vulnerable adults.

Who needs a DBS Check?

We would recommend that anyone who is in a position of trust undergoes a DBS Check. Criminal record checks are a public service and available to any employer in order to help to make suitable recruitment decisions. Anybody can have a criminal record check, the only rules are related to the level of check they qualify for.

What types of checks are available?

There are three types of criminal record checks: Basic, Standard and Enhanced. Each goes into its own level of detail, and each is more suited for certain industries than others.

Type of check

Basic Disclosure Check

Standard DBS Check

Enhanced DBS Check

Cost (discounted rates available for bulk orders)




Who issues the check?

Disclosure Scotland
(to be taken over by Disclosure and Barring Service 1st January 2017)

Disclosure and Barring Service

Disclosure and Barring Service

Who applies?

Both organisations and individuals can apply.

Organisations only on behalf of the applicant.

Organisations only on behalf of the applicant.

What is disclosed?

Unspent criminal convictions.

Cautions, warnings, reprimands, spent and unspent convictions.

Cautions, warnings, reprimands, spent and unspent convictions.

Can also search 'barred lists'. Also includes local Police records


Basic Check

A Basic Check, also known as a Basic Disclosure, is the simplest check you can apply for. It is often conducted as part of the recruitment process. Individuals can apply for a Basic Check on themselves.

This type of check will reveal all criminal convictions that are considered to be unspent under the Rehabilitation of Offenders Act (1974).

An application form can be requested by the individual themselves or by the organisation they are applying to work for. Applicants will be required to provide copies of the following identification:

  • Proof of ID e.g. driving licence or passport
  • Proof of home address e.g. bank statement or utility bill

How long does it take to receive a Basic Check?

It takes between one and two weeks to process your application. Generally we find that Basic Checks are returned to us in one week if there are no queries.

If an individual applies independently, the certificate will be sent to the applicant's home address. However, if a company applies through our online system, the certificate can be posted to the employer.

Standard DBS Check

A Standard DBS Check is more in-depth and will show details of all spent and unspent convictions, cautions, warnings and reprimands on a person's criminal record.

An employer can only able to apply for this level of check if they are in certain sectors. These include: Financial services and accountancy, health and social care, legal, contractors on regulated sites (e.g. schools), education, dental practices and childcare. A list of positions where a Standard DBS Check may be required can be found here.

How do I apply for a Standard DBS Check?

For this level of check, employers must apply on behalf of the potential candidate; an individual cannot apply themselves. Once the employer has completed the application and it has been processed, the certificate will be mailed directly to the applicant. They may be required to present this to their employer.

Generally we find that Standard DBS Checks can be returned in as little as 24 hours if there are no queries, whereas some can take a week.

Enhanced DBS Check

An Enhanced DBS Check is the highest level of check available. It will search a person's criminal record for any spent and unspent convictions, warnings, cautions and reprimands. It can also search the Children and Vulnerable Adults Barred Lists. Local police forces also have the opportunity to add any relevant information they hold on the applicant.

The Enhanced DBS Check is recommended for anybody working in a position of trust with children or vulnerable groups. The Enhanced DBS Check allows the option to conduct a search of the Children's and Adult's Barred Lists, to check the applicant isn't barred from working with these groups. This is recommended if the applicant would be carrying out activities such as teaching, caring, training or supervising.

How do I apply for an Enhanced DBS Check?

As this is the highest level of check available, applicants are not able to apply themselves. Employers will submit the application for them, and the certificate will be sent directly to the applicant. The applicant will then be required to show it to their employer.

Although there is no guarantee of certificate turnaround times, we often find that Enhanced DBS Checks can be returned to us in as little as a day, if no queries are raised, with others taking a week.

Can I pass or fail a DBS Check?

There is no pass or fail system when applying for a DBS Check. The check will show any information on a person's criminal record.

A criminal record includes cautions, warnings, reprimands and convictions; but evidence of these does not mean you have "failed". It simply means that your new employer must take into account whether the offence is relevant to the role you are applying for.

Are DBS Checks required by law?

DBS Checks are not required by law. However, many organisations such as OFSTED and the CQC will state that employers must conduct DBS Checks on their staff. These policies have been put in place for their own best practice purposes in order to make suitable hiring decisions.

How long is a DBS Check valid for?

There is no official expiry date on a DBS Check. The information provided on the most recent DBS Check will be accurate from when the check was carried out.

There is no legal requirement stating that checks need to be renewed after a certain amount of time. It is the decision of the employer to decide whether they are satisfied with the DBS Checks you have or if they want to see an up-to-date one. However, many of our clients have a policy where they will renew their staff's DBS Checks once every three years.

Can DBS Checks carry over to different jobs?

There is no legal requirement that states a DBS Check can only be completed for a certain employer. Although the DBS doesn't endorse portability, it is up to the new employer whether they are happy with the one they have been presented with or whether they would prefer to conduct a new check. One factor they may want to consider is whether the level of the existing check is high enough for the new position.

The DBS now runs an Update Service via its website. Applicants can sign up to the Update Service for an annual fee of £13. If you were to move jobs and you already had a DBS Check to your name, rather than your employer applying for a new certificate, the new employer could log on to the Update Service and confirm if there have been any changes to your criminal record. For example, if a person has a clean certificate and the Update Service confirms that nothing has changed, then both the employer and employee know that the clean record still stands. However, if the Update Service states that something has changed, it would prompt the new employer to apply for a brand new check.

Can a DBS Check stop you from being hired?

If a DBS Check shows the applicant has a criminal record, the employer has to make a hiring decision on the relevance of the offence in relation to the role being applied for. They can do this by taking into consideration the nature of the offence, their age when it was committed and what type of record it has left.

The Rehabilitation of Offenders Act also states that after a certain amount of time, an employer cannot discriminate against someone because of their conviction. After that time has elapsed, an employer has to treat that person the way they would any other individual, regardless of their convictions.

However, if the applicant is found to have any offences against children or vulnerable adults, or is found to be on the Children's Barred List or Adult's Barred List, then it would be illegal for the employer to hire them and place them in a position where they are working with children or vulnerable adults.

Copyright © 2016 Personnel Checks

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Giving references - say it nicely or say nothing at all?

July 12, 2016 by Guest contributor

Giving references - say it nicely or say nothing at all?{{}}Were you ever told "if you can't say anything nice, then don't say anything at all"? Not a bad rule for a child looking to avoid trouble in the playground, but rather less helpful when it comes to the thorny problem of giving an employee a reference.

Your employee certainly isn't going to be happy if you give them a bad reference, especially if that means they end up missing out on the new job they were hoping to get. That could be just the encouragement they need to have another look at whether they can take you to an employment tribunal.

So how about "don't say anything at all"? A prospective employer doesn't have to be a genius to guess that your reluctance to give a reference might be covering up something you'd rather not put down in writing. So what will you say when they phone you asking why you didn't provide a reference?

Meanwhile, of course, your employee might well be justified in claiming that your refusal to give a reference is as bad as - or even worse than - just telling the truth.

Following the old childhood advice, you might look for something nice to say. That would make your employee happy. The problem is that it might well make his/her new employer very unhappy if they end up having to deal with a disastrous new hire that you deliberately decided not to warn them about.

So it should come as no surprise that employers increasingly restrict employment references to just a few basic facts, confirming job title and employment dates but refusing to say anything more. And they make a policy of doing this every time, regardless of whether an employee has been a dream or a nightmare.

It makes the employment reference next to useless, but it also minimises the risk of legal claims.

"If you can't say anything nice, have a policy of always saying the bare minimum and including appropriate disclaimers." It's not catchy, but it might be your best approach.

Chris Walker, specialist business writer, editor and content strategist

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A rough guide to employment law

June 21, 2016 by Liz Dawe

A rough guide to employment law{{}}Like many employees of a small business, I wear at least two hats; in my case content management and human resources. With my HR hat firmly in place I recently attended an Acas HR masterclass hoping to pick up a few tips.

It turned out that I wasn't alone in juggling more than one job, and I discovered that I knew more than I thought I did about people management and recruitment. So far, so good.

Then came the employment law bit.

At that point I braced myself to be the one who didn't know the answer to various situational posers. But you know what? Neither, it seems, did the employers, the employees, the lawyers, the courts or the employment tribunals in the case law examples we were given. Alongside the "it depends" responses to the "is this discriminatory?" type of question sat quite a lot of "the first judge said yes, the appeal judge said no".

Can you ban an employee from wearing a religious symbol at work? What if other people find it offensive? What, legally, constitutes "reasonable"? There are no clear answers but there are lots of legal opinions and a great deal of interest in the latest legal judgments setting precedent for the next appeal.

Of course, there are some obvious cases of discrimination, and it would take an extremely obdurate employer to advertise for only young, white, male employees. But it seems that recruitment, work requirements, office behaviour, dress codes, offensive language or freedom of individual expression are all open to quite a lot of interpretation.

If even employment law specialists and judges can't always agree, how on earth can a small business get it right?

My advice would be to gen up on the basics of employment law, have employment policies in place and make sure everyone is aware of them and sticks to them. And if in doubt, err on the side of caution.

It seems that even if one of your hats is actually a long horsehair wig, employment law is still something of a minefield.

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What does the high heels row mean for your business?

June 07, 2016 by Guest contributor

What does the high heels row mean for your business?{{}}The media storm over the agency worker who was sent home for refusing to wear high heels has highlighted issues with the current discrimination laws.

Nicola Thorp, a 27 year-old receptionist, hit the news headlines recently when she was sent home from work for refusing to wear high heels. But is this legal?

Thorp was employed by PricewaterhouseCoopers' outsourced reception firm Portico. Upon arriving at work, wearing smart flat shoes, her supervisor informed her that she would need to go and buy heels that were between two and four inches high or else she would be sent home without pay. When she refused, Portico sent her home.

Thorp had signed up to Portico's appearance guidelines before accepting the role but employers need to be mindful that workers can bring cases if the dress code falls foul of sexual discrimination legislation.

Portico has since changed its uniform guidelines with immediate effect. The new dress code policy for the company allows all women to "wear plain flat shoes or plain court shoes as they prefer". However, this does not change the fact that the law in relation to dress codes, as it currently stands, is open to question and potential abuse by employers.

Thorp has set up a petition asking the Government to make it illegal for a company to require women to wear high heels at work. It has attracted more than 141,000 signatures. As a result, Parliament will consider this for debate.

What is the current legal position?

The Employment Appeals Tribunal (EAT) has made it clear that dress codes are lawful, provided they are not discriminatory.

In Thorp's case, the issue is that it is still legal for a company to require female members of staff to wear high heels at work against their will. In addition, employers can also send staff home if they fail to live up to "reasonable dress code" requirements, as long as they have been given enough time to buy the right shoes and clothes.

It can be argued therefore that dress code laws as currently drafted are potentially sexist and may therefore need to be changed so that women have the option to wear flat formal shoes at work, if they so wish. Wearing flat shoes at work would enable a woman to carry out her job more efficiently, particularly, as in Thorp's case, if a nine-hour shift is expected, requiring her to be on her feet all day.

Gender equality

Gender-specific dress codes are lawful in the UK, as long as they do not treat one or other of the sexes less favourably and there is an "equivalent level of smartness".

If it can be established that members of one sex are being treated less favourably than members of the opposite sex, the "but for" test comes into play (Smith v Safeway). But for the fact that Ms Thorp was a woman, would she have been required to wear high heels?

The Tribunal said no to a similar question posed in the case of Safeway. The case concerned a male staff member who was required to wear a collar and tie. The EAT found that the Tribunal's decision was flawed and that the Tribunal had misapplied the "but for" test. The test only becomes relevant once it has been established that members of one sex have been treated less favourably than members of the other sex. In the case of Safeway, the Tribunal had only asked itself whether “but for the fact that T was a man, would he have been required to wear a collar and tie?”. The first limb of the test had not been satisfied.

Advice to employers

The correct approach is to consider whether the level of smartness required could only be achieved for women by requiring them to wear high heels. If it could be achieved by other means then the lack of flexibility shown in the approach taken towards women may suggest less favourable treatment. Whilst dress codes are lawful, employers with similar dress codes therefore may wish to consider whether the requirement for women to wear high heels is actually necessary to achieve the level of smartness required.

Provided that you, as the employer, adopt an even-handed approach, the fact that members of one sex are required to wear clothing of a particular kind, but members of the other are not, will not necessarily mean that members of one sex are treated less favourably than members of the other. It will depend on the overall context of the relevant dress code.

Acas guidance

Acas provides assistance to both employers and employees. The key points made by Acas are:

  • employers must avoid unlawful discrimination in any dress code policy;
  • employers may have health and safety reasons for having certain standards;
  • dress codes must apply to both men and women equally, although they may have different requirements;
  • reasonable adjustments must be made for disabled people when dress codes are in place.

Companies have a large measure of discretion in controlling their company's image, including the appearance of staff, especially those who have contact with customers. Now's the time to review your dress code policy and ensure that it does not fall foul of discrimination or other employment laws.

Copyright © 2016 Jennifer Spain, iLaw.

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Settlement agreements part 2: the practicalities

May 10, 2016 by Guest contributor

Settlement agreements{{}}

How much should an employer offer to pay an employee under a settlement agreement?

There is no set formula in terms of what an employer ought to offer an employee by way of a severance payment under a settlement agreement. It will very much depend on:

  • The surrounding circumstances of the case;
  • The terms in the employee's contract; and
  • Any potential claims that the employee may have against the employer.

In terms of guiding principles, employers need to bear in mind that they are effectively compensating the employee for their forbearance in not filing a claim with the Employment Tribunal, arising out of their employment and the termination thereof and therefore the likely value of any such claim(s). Any ex gratia sum offered should reflect this.

The tax position

The employer ought to take specialist tax advice in relation to the taxable status of the payments being made under the settlement agreement. An ex gratia payment, genuinely representing compensation for loss of employment, can be made of up to £30,000 without deductions for PAYE.

Contractual payments

Depending on what is contained in the employee's contract of employment, the settlement agreement will also make provision for the following categories of contractual payment:

  • Notice (or payment in lieu thereof);
  • Bonus;
  • Private medical care insurance;
  • Life assurance;
  • Pension; and
  • Consideration for the employee reaffirming their confidentiality and post-termination restrictions.

The importance of obtaining legal advice

We recommend obtaining professional legal advice first before putting forward a settlement offer, given the potential pitfalls involved.

Further, we recommend the settlement agreement itself is drafted by a specialist employment lawyer in order to get the terms right.

The amount your legal advisor will charge to draft a settlement agreement varies and depends on the precise circumstances and the terms being sought under the agreement itself, including for example dealing with issues such as confidentiality, intellectual property rights and post-termination restrictions.

When should the employee expect to receive the settlement monies under the agreement?

The settlement agreement typically provides that any ex gratia amount is to be paid between 14 to 28 days of the agreement itself being signed.

In terms of contractual payments such as salary, accrued untaken holiday, contractual bonuses or commission, the agreement tends to provide that such payments will be made in the next payroll run on the usual payroll date.

Who pays for the legal advice an employee has to take on a settlement agreement?

An employee needs to obtain independent legal advice on a settlement agreement if it is to be legally binding.

Since it is in the employer's interests for the employee to sign the settlement agreement, in the overwhelming majority of cases, employers agree to make a contribution of between £250 to £500 plus VAT towards the employee's legal fees in needing to obtain independent advice as to the terms and effect of the settlement agreement.

It is not recommended to offer a higher cost contribution than this since, by doing so, the employer may effectively be paying the employee's additional legal fees for their independent advisor to negotiate an improved settlement on their behalf.

What if an employee is not prepared to sign the settlement agreement?

An employee may decide to turn down a settlement agreement if they consider the amount on offer insufficient, based on the advice they have been provided and based on the fact that the employer is not prepared to increase this.

An employee may also elect not to sign a settlement agreement, based on the advice of their adviser, as to its terms and effect, for example if they consider its terms to be too onerous.

As explained in Settlement Agreements Part 1, if an employee refuses to sign the settlement agreement then there is a risk that they may rely on it and the conversations surrounding it as evidence in bringing a grievance, resigning and claiming constructive dismissal, discrimination and bringing any employment proceedings.

Advantages and disadvantages of offering a settlement agreement

The ACAS guidance sets out a number of key advantages and disadvantages for employers that are considering offering an employee a settlement agreement.


A settlement agreement can:

  • Provide a swift and dignified end to an employment relationship that is not working; and
  • Avoid the time and cost involved in dealing with a grievance and/or defending a tribunal claim.


A settlement agreement can:

  • Involve substantial financial cost to the business in having to pay an agreed financial sum to an employee;
  • Expose the employer to potential risk in terms of any on-going employment relationship with the employee, if a mutually agreed settlement cannot be reached, with the potential that they may rely on the settlement agreement offered and any conversations or documents relating to it as grounds for resignation and making a claim in the employment tribunal; and
  • The potential risk to employment relations in the wider workforce if used inappropriately or as a substitute for good management practices.

Copyright © 2016 Julian Cox, head of employment at iLaw

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Settlement agreements part 1: what employers need to know

April 26, 2016 by Guest contributor

Settlement agreementsSettlement agreements can be an effective way to manage the termination of an employment contract but they have to be handled with care, says Julian Cox, head of employment at iLaw. In the first of his two blogs, Julian sets out what you need to know about settlement agreements

Spring coincides with the start of the new financial year for many businesses. It is often a time when employers review the performance of their business over the previous year and plan for the future. Depending on how the business has performed, some tough decisions may be required surrounding staffing levels, leaving some employees finding themselves in the unfortunate position of having to look for employment elsewhere.

Employees benefit from a raft of legal protection under the statutory framework of UK employment law. As a result, employers are often required to go through prescriptive disciplinary, capability or redundancy procedures if they are to avoid unwanted claims in the Employment Tribunal and legal costs associated with defending these proceedings. This takes up valuable management time. It is worth bearing in mind that a single case of unfair dismissal could cost your business up to £94,000 and there is no cap on compensation in discrimination cases.

Set against the landscape of current UK employment law, a settlement agreement is a useful instrument offering employers a quick and clean method of terminating an employee's employment without having to undertake potentially protracted disciplinary, capability or redundancy procedures.

However, for the unwary employer there are still some pitfalls that need to be avoided. Here's what's involved:

What is a settlement agreement?

A settlement agreement, or compromise agreement as they were previously known, is a legally binding, confidential agreement between an employer and an employee. The employer offers the employee a sum of money (a severance payment) and, in return, the employee agrees to waive any legal claim he or she may have against his/her employer, whether arising out of the period of employment or the termination thereof.

What is advantage of using a settlement agreement for employers?

In addition to the employee waiving any legal claim he or she may have against the employer, a settlement agreement can also provide additional protection for employers including the introduction or reaffirmation of:

  • Post-termination restrictions;
  • Duties of confidentiality; and
  • Non bad mouthing provisions.

Settlement agreements also give employers the additional comfort of knowing that the terms offered, and in particular the precise value of the financial settlement reached, will remain entirely confidential. This is particularly important where employers have other employees with grievances or employees that are looking to make a potential claim.

Under what circumstances might an employer use a settlement agreement?

Settlement agreements are used by employers in various situations; for example when they are faced with a group of employees that they want to make redundant and:

  • The employer is concerned about the grounds being relied upon for making them redundant; or
  • The length of time it will take to go through due and proper process, involving warning and collective and individual consultation before notice can be given.

Settlement agreements are also used when employers are faced with an underperforming employee and a performance improvement programme would otherwise need to be put in place and the employee given a proper opportunity to improve (which could take up to four to five months) before notice of termination can be given.

What are the risks of offering a settlement agreement?

A settlement agreement is not simply a magic wand that employers can wave to make a problem that involves an employee disappear. Indeed there are certain employment situations where offering an employee a settlement agreement can be dangerous, exposing the unwary employer to unanticipated liability.

Where an employer offers an employee a settlement agreement out of the blue, without previously raising concerns regarding their conduct or performance, there is a risk that employers may try to claim that such discussions and any supporting documents supplied are "off the record" or "without prejudice".

However, they are not entitled to treat them as having such legally protected status. Such documents would include both paper and electronic written correspondence, attendance notes of meetings and the settlement agreement itself.

Consequently, if the employee refuses to accept the settlement agreement, the employee may argue that, as a result of it being offered, the underlying relationship of mutual trust and confidence between employer and employee has irretrievably broken down.

The employee may therefore seek to rely on the settlement agreement, surrounding discussions and correspondence as supporting evidence as part of a formal grievance against the employer.

Further, if the grievance is ultimately not resolved to their satisfaction, they may use this evidence as part of a claim for constructive dismissal and/or discrimination in the Employment Tribunal.

It is also important to be aware that settlement agreements only guarantee conversations are legally "protected" in narrowly defined circumstances; where, arising out of the facts of the situation, the employee may have a claim of unfair dismissal claim against the employer.

If the employee has a "protected characteristic" (e.g. sex, pregnancy, race, disability or age) and is complaining of less favourable treatment or harassment, there is the risk of them bringing a claim of discrimination. In such circumstances, the settlement agreement and the correspondence and conversations surrounding it will not be afforded such legal protection. So, for example, if you offered a settlement agreement to a pregnant employee, then the agreement and surrounding negotiations are unlikely to enjoy legal protection.

Similarly, where an employee is a whistle-blower, they may have an automatic unfair dismissal claim and then the settlement agreement and any correspondence and conversations surrounding it, will not be afforded the veil of protection and may be used in evidence as part of a tribunal claim, should the employee decide to reject the settlement on offer.

ACAS guidance on settlement agreements

ACAS has published its own guidance on settlement agreements. It sets out examples of "inappropriate behaviour" on the part of employers that would result in the settlement agreement and any correspondence and conversations surrounding it not being legally protected.

Examples include:

  • Bullying, harassment and intimidation (e.g. pressurising a black employee, who has raised a complaint of race discrimination, into signing the settlement agreement or risk dismissal);
  • Victimisation;
  • An employer informing an employee, prior to the instigation of disciplinary proceedings, that if they do not accept a settlement agreement then they will be dismissed; and
  • Not providing your employee with a reasonable amount of time to consider the settlement agreement on offer. The ACAS guidance recommends a period of ten calendar days to consider a settlement agreement.

Because of the potential pitfalls involved in offering a settlement agreement, we recommend that appropriate legal advice is obtained before doing so.

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Navigating the legal minefield of the work Christmas party

December 08, 2015 by Guest contributor

Navigating the legal minefield of the work Christmas party{{}}The annual workplace Christmas party is traditionally a way for colleagues to celebrate their successes over the past year and let their hair down in the build up to the holidays.

Although some businesses put on a lavish event, often it's just a meal with a few drinks. The majority of these work "dos" are appreciated by employees and go without a hitch, but occasionally problems do arise and employers can be held vicariously liable, because the party will generally be considered to be an extension of the workplace. Avoid a litigious start to the new year by guarding against some of the main issues.

Sex discrimination and harassment

Some of the most clichéd Christmas party shenanigans, such as asking a colleague for a kiss under the mistletoe or distributing photocopies of one's posterior, can potentially lead to sex discrimination or sexual harassment claims under the Equality Act 2010.

Sexual jokes, remarks, so-called "banter" or simply mild flirtation may cause offence or discomfort and employers should ensure that party attendees are aware of the boundaries. Suggestive "selfies" or risqué photos taken at a party and circulated on social media by colleagues can also lead to headaches that continue beyond the hangover. Even a sexually suggestive "Secret Santa" gift can lead to legal problems.

Case in point: Livesey v. Parker Merchanting Ltd [2004].

Religious and philosophical belief discrimination

Although mass consumerism has diluted its origins for many, Christmas is still a Christian religious festival and some of the traditions may potentially cause offence to people who follow other religions, atheists and agnostics.

Under the Equality Act 2010, employers must ensure that staff who hold different religious or philosophical beliefs do not suffer discrimination at a work Christmas party. This might mean providing non-alcoholic drinks (eg for teetotalers or Muslims), halal or kosher meat, vegetarian or vegan meal options. If the event is being framed specifically as a Christmas party, attendance should not be mandatory (ie to avoid causing offence to anyone who does not celebrate Christmas).

Case in point: Elgedawy v Hanover Park Commercial Ltd.

Age, race, disability, sexual orientation, marital status, pregnancy and transsexuality

These are the other protected characteristics, on grounds of which it's unlawful to discriminate under the Equality Act 2010, and employers should take reasonable steps to ensure that staff are not affected by "banter" or inappropriate humour relating to any of these characteristics. Furthermore, if any employees with disabilities are attending, disabled access should be provided at the venue. And if partners are invited, "plus one" invitations should not make assumptions about gender.

Case in point: Nixon v Ross Coates Solicitors & Anor [2010].

Health and safety

Whether the work Christmas party is held on or off-site, the employer will generally still be responsible for the health and safety of their attending employees under the Health and Safety at Work etc Act 1974. As alcohol is often involved, the likelihood of slips and trips can increase, and there is even the possibility of high spirits taking a change of direction and ending up in a fight. Employers should also consider how their staff members will get home safely. Another health and safety concern relates to food, and employees with certain food allergies should be catered for.

Case in point - Westlake v ZSL London Zoo.

Data protection and social media

Mobile phone cameras and social media can bring further festive gloom for employers, who need to ensure they abide by the Data Protection Act 1998. In particular, care must be taken if photos of attendees are posted on social media sites or distributed to colleagues, especially if there are inappropriate or compromising. Also, comments posted to social media feeds by employees whose virtual tongues have been loosened by alcohol may cause post-celebratory issues.

Case in point: Game Retail Ltd v Laws [2014].

Copyright © Alex Heshmaty, legal copywriter and journalist. Alex runs Legal Words, a legal copywriting and marketing agency based in Bristol.

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Putting an end to CV fraud

December 07, 2015 by Guest contributor

Putting an end to CV fraud{{}}In an era of social media where we increasingly share every detail of our lives online, the amount of misinformation that appears on a candidate's CV is extraordinary. From bumping up a poor degree to exaggerating about essential qualifications, it appears that some individuals often play fast and loose with the facts.

For start-ups that are recruiting staff, there's a real danger of employing a fraudulent candidate; and the risks include having to pay for the cost of recruiting another candidate or even legal action.

The solution is to create a culture within your business that values in-depth candidate checking.

In 2014, 63% of all the confirmed employment frauds reported to Cifas, the UK's fraud prevention service, was due to individuals lying about their education, former employment or qualifications.

While most employers and recruitment professionals are aware of the need to verify a candidate’s CV, checking often goes beyond simple verification of academic performance. Many job roles require checks of criminal records, credit history and CRB status.

With staff shortages, many companies are looking to recruit quickly and good candidates can often pick and choose between roles; many start-ups are under pressure to skimp on these vital checks in order to get new staff on board quickly.

The issue is compounded by the fact that once an individual has any kind of employment track record, the temptation is to assume that the previous employer has undertaken the necessary checks.

We often hear of high-profile individuals that have managed to build decade-long careers despite a basic lack of credentials - such former Yahoo boss Scott Thompson who had to step down in 2012 when it emerged that he had falsely claimed to have a computer science degree.

As start-ups struggle to address this, there have been growing calls for the reintroduction of regulation that was abolished 20 years ago. While most employers and recruitment specialists adhere to both the Employment Agencies Act and the Conduct of Employment Agencies and Employment Businesses Regulations, a lack of licensing enables bad practice to persist.

The checking process also needs to be embedded within end-to-end recruitment activity. So rather than a simple "yes" or "no" check-box which provides too much temptation to take shortcuts, companies need a simple way of uploading checks and associated documentation to their database or CRM system.

This way, anyone running the recruitment process in a company can look at a candidate’s information, academic credentials and credit check; even CRB documents will be immediately visible.

Robust checking can add a couple of days to your recruitment process. However, it is only by creating the right culture within your start-up – one that values accuracy and depth of candidate review over speed at any cost - that employers can confidently meet evolving employment targets.

By combining this culture with a recruitment process that enforces compliance and enables essential verification documentation to be easily retained and shared, we can all take steps to eradicate CV fraud.

Copyright © 2015 Toby Conibear, European business director at Bond International Software.

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Understanding the different types of minimum and living wages

November 12, 2015 by Guest contributor

Living wage{{}}As of 1 October 2015, the annual round of National Minimum Wage (NMW) increases came into effect, with the rate for anyone aged 21 and over going up to £6.70 from £6.50. The most significant increase was to the apprentice rate, which was hiked up from £2.73 to £3.30.

But many workers on the minimum wage will not have to wait another year to see further increases. Employees aged 25 years or over will benefit from the new “National Living Wage” (NLW) which is set to be introduced from April 2016 and will override the NMW rates for anyone in this age bracket. Employers will need to pay a minimum of £7.20 per hour to any of their staff who are 25 and over from April. The Low Pay Commission will recommend future rises to the NLW, with the expectation that it will reach £9 per hour by 2020.

NLW is not replacing NMW and the latter will continue to apply to any employees under the age of 25. However, many retailers have pre-emptively raised the pay packets of their lowest earners to the NLW or higher, irrespective of age. Costa are reportedly paying £7.40 to their trained baristas (£8.20 in London) and Aldi has vowed to introduce a new £8.40 minimum rate for its employees from February 2016.

It should be noted that the NLW, which employers will be required to pay by law from April 2016, is distinct from the living wage set by the Living Wage Foundation. The rate set by the foundation - described as “an independent calculation that reflects the real cost of living” - currently stands at £8.25 (and £9.40 in London).

Alex Heshmaty is a legal copywriter and journalist. He runs Legal Words, a legal copywriting and marketing agency based in Bristol. [email protected].

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Unfair dismissal tribunals - infographic

October 30, 2015 by Guest contributor

Unfair Dismissal and Redundancy{{}}
Information about Unfair Dismissal and Redundancy from Knocker & Foskett employment solicitors, based in Kent, visit their website for more information

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How to prevent unauthorised staff absence

September 28, 2015 by Guest contributor

How to prevent unauthorised staff absence {{}}Sick days are estimated to cost UK businesses £29bn per year and our staff take up to four times the amount of sick leave compared to our global competitors. New businesses (like any other) can't risk having staff who are integral to their success costing them money through unauthorised absences. The problem should be nipped in the bud early on.

Reporting staff absence

Even if your start-up only has a few employees, you should have a formal policy on staff absences. Setting up an absence reporting procedure and consequences for unauthorised absences makes your position clear from the get-go. Too much leeway early on only causes problems in the future.

Absence reporting should be done over the phone rather than via text or email, with the staff member having to give a clear reason for their absence. Failing to follow the procedure should have repercussions, be that withholding sick pay or taking disciplinary action. Include a clause in your employment contracts that allows you to request a medical report from employees. This could be necessary in the case of long-term absences or increasingly frequent sick days.

Monitoring staff absence

Monitoring absences can reduce the frequency and costs of staff absence, but too many businesses fail to properly monitor their staff. The smaller your business, the simpler monitoring staff absences should be.

A proactive approach, which takes into account general attitude, productivity at work, and key dates that might tempt employees to stay off work, can be useful. As a start-up, your business is unlikely to have an HR professional to deal with recording staff absences and that's where HR software can help. It can automatically monitor staff absence levels and tell you when they are getting too high, as well as ensuring your business complies with the relevant legislation.

Reducing staff absence

Once you have a procedure for absence reporting and monitoring, you'll want to look at how your business can reduce absences and keep unnecessary costs down. Currently, few businesses set targets for reducing absences, but as a start-up, implementing absence reduction tactics early on will prove beneficial.

While disciplinary action is one way to reduce unauthorised time off, prevention strategies such as well-being programmes have been linked to reduced absenteeism and increased productivity and could therefore be worth pursuing.

Following these three simple steps and putting in place measures to make staff accountable for their absences will pave the way for effective absence management in your business and benefit your start-up in the long-run.

Copyright © 2105 Stuart Hearn, who has 20 years' HR experience and is CEO of OneTouchTeam, an online staff leave planner and HR system for small businesses. Connect with Stuart on Twitter @onetouchteam.

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What can you do when tube workers strike businesses a blow?

August 24, 2015 by Fiona Prior

What can you do when tube workers strike businesses a blow?{{}}London Underground is holding last ditch negotiations with unions in an effort to avoid two 24-hour tube strikes planned for this week.

The strikes are over pay and working shifts as the Mayor of London, Boris Johnson, and London Underground attempt to bring a 24-hour service to London's underground system.

If the tube strikes go ahead, it will mean yet another wave of disruption for businesses since the 24-hour service was announced back in September 2014. The Federation of Small Businesses estimates that the strikes in February cost businesses up to £600 million, with cancelled meetings and staff absences accounting for a large proportion of the losses.

So what are your rights when strikes hit? Do you still have to pay employees who don't make it in to work?

As an employer, you are not automatically obliged to pay your employees if they can’t work.

Much will depend on your contracts of employment and any policies that you may have to cover absences.

These may set out how much effort you expect employees to make in order to get to work in the event of strikes, bad weather or other events. Can they walk, cycle or drive to work if they normally take the tube?

Your policy may also set out whether they will be paid if they cannot make it in to work, or whether they are expected to take unpaid leave or holiday. Having a clear policy avoids misunderstandings and disputes and so can save you money.

With advance notice, it may be possible for some workers to carry out their duties remotely or from home. You could allow employees to alter the place or times of work, perhaps starting and finishing early to avoid the traffic or queues for buses, making up hours at another time. This option could allow your business to keep functioning.

When making such arrangements, you must make sure you do not discriminate against any of your workers. Furthermore, if employees decide to work from another location, you must make sure that health and safety obligations are met and that the location and equipment are suitable for the work being done.

You should also consider whether it is unsafe or too difficult for employees to come to work. Expecting an employee to come in to work unreasonably could amount to grounds for a grievance claim, so caution is advised. Firing someone for not turning up could land you in hot water – unless there is a pattern of absence to back your decision up.

Generally speaking, if there’s travel disruption employers can ask staff to take paid holiday (annual leave) if they give notice that is at least double the length of time they want employees to take in annual leave. So for one day’s annual leave it would be two days notice.

That said, it's worth using your discretion and consider paying your employees as a gesture of goodwill – after all, it isn’t their fault if they can't make it in and keeping your staff happy is good business practice.

Whatever you decide, you should make it to clear what you expect. For example, that employees should make every effort to make it in to work; that they should communicate with you if it is not possible; and informing employees whether they will be paid if they don't show up or whether the absence will be taken from their holiday allowance.

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Is your business ready for shared parental leave?

April 29, 2015 by Mark Williams

Is your business ready for shared parental leave?{{}}Employment law changes introduced on 5 April mean parents who both work now share rights to up to 50 weeks’ leave after having a baby or adopting a child.

Mothers will still take the first two weeks off as compulsory maternity leave (four if they work in a factory), while fathers/partners will also be able to take two weeks' paternity leave. But the remainder of maternity leave can be shared or taken by the father/partner.

Leave and pay

Employees can take shared parental leave in up to three separate periods. By being able to share leave with their partner, they can choose how much time off each of them will take. Leave must be taken before the baby’s first birthday (or within one year of adoption), but no more than 12 months' leave can be taken between the mother and father/partner.

Employees must give at least eight weeks’ notice of any leave they want to take. Unless you offer an enhanced package, employees receive statutory pay, which is 90% of average weekly earnings before tax for the first six weeks, then £139.58 a week or 90% of average weekly earnings (whichever is lower) for the next 33 weeks (if that amount of time is taken). In total, 39 of the 52 weeks will be paid.

Parents can choose to stick with previous standard maternity/adoption and paternity leave/pay, they do not have to take shared parental leave.

Dealing with requests

The Forum of Private Business recommends discussing “the application in depth with the employee before they formally submit a request, as repeated applications will be very time consuming to assess.”

It warns: “Employers have no right to reject an application for continuous leave; shared parental leave can only be rejected on a similar basis to the objections to flexible working. You cannot penalise parents for using SPL or put any pressure on them to cancel or change it. Failure to follow the regulations correctly could result in Employment Tribunal action and considerable financial penalties against you and your company.”

Paternity leave proposals

In February Labour announced plans to increase paternity leave to four weeks if elected in May, as well as increase statutory paternity pay by more than £120 a week to £260, paid for by savings in tax credits.

John Allan, national chairman of the Federation of Small Businesses, said: “Businesses will have legitimate concerns about these proposals and it’s important political parties understand the practical implications of policy changes. Altering paternity leave so soon after introducing shared parental leave has the potential to cause confusion among businesses that are only getting to grips with the most recent changes. We'd like to see shared parental leave have a chance to bed in before seeking to give dads extra time off.

“The reality is that for small businesses in particular, extending paternity leave from two to four weeks makes it much more likely that they will have to buy in replacement staff as they will struggle with absences. That’s a cost that some firms will struggle to afford.”

Grandparental leave?

And if you’re worried about the prospect of male employees wanting to take more than two weeks’ paternity leave, working grandparents could also be granted time off to look after their grandchildren under plans proposed by Labour as part of its ‘women’s manifesto’.

As The Independent explains, thanks to so-called “granny leave”, grandparents could “share up to 18 weeks of unpaid leave, or four weeks in any year, currently afforded to working parents or those with legal parental responsibility”.

According to research from Working Families, reports The Independent, nearly three in five grandparents already provide regular childcare. It adds: “National charity, Grandparents Plus, estimates that 1.9m grandparents have given up a job, reduced their hours or taken time off work to look after their grandchildren, which in some cases has meant a loss in income.”

Next frontier

Labour deputy leader Harriet Harman said: “Instead of having to choose between retiring early and giving up work, or not being part of the daily care for their grandchildren, we’re saying let’s look at the leave arrangements to recognise the pattern of family life. This is the next frontier. It’s the first time there has been a policy which recognises this role of grandparents.”

Neil Carberry, CBI director for employment and skills, said: “Many grandparents play an important role in helping support working families, so these proposals to consider making existing leave entitlements more flexible will help them to balance that responsibility with their own careers. Businesses are looking forward to seeing the details of this policy and making sure it works for both family members and their respective employers.” Labour plans to consult on the proposal if it wins the general election.

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What can employers learn from the Jeremy Clarkson 'fracas'?

April 16, 2015 by Mark Williams

Jeremy ClarksonIf reports are to be believed, it’s probably the highest price anyone has ever paid for a steak dinner. You probably already know the story (how could you have missed it?), but let's remind ourselves...

As reported by The Telegraph et al, on 4 March former Top Gear presenter Jeremy Clarkson verbally abused and physically assaulted BBC producer Oisin Tymon. Why? Things turned nasty after Clarkson couldn't have a sirloin steak following a day’s filming. Indeed, no hot food was available at the Simonstone Hall Hotel in North Yorkshire, with the 55-year-old Doncaster-born presenter not reacting favourably to the offer of a cold platter.

According to The Telegraph, "during a 40-minute rant" Clarkson called Tymon "a lazy Irish ****" and threatened to get him sacked, before punching him. Witnesses allege a string of expletives during the fracas/mêlée (or "dust-up" as fellow Top Gear presenter James May quaintly called it), which reportedly left Tymon with a cut lip that required hospital treatment.

Rosé wine

According to the BBC's official report into the incident, the "physical attack lasted 30 seconds and was halted by the intervention of a witness". The Mail said the Top Gear "production team had been scheduled to take a helicopter to their next location after filming, and return to the hotel at 8pm. However, Clarkson kept the helicopter waiting for three hours while he sat in a pub drinking rosé wine, Channel 4 reported."

Eventually, because the hotel chef had gone home for the evening, its general manager prepared a £21.95 steak for Clarkson, "to calm him down", although the broadcaster would soon pay a far higher price. Clarkson himself called Danny Cohen, director of BBC television, to report the incident, and reportedly tried to apologise to Tymon many times via text, email and in person.

Racism controversy

On 10 March it was announced that Clarkson had been suspended from Top Gear (the rest of the hugely popular series has since been cancelled, despite furore from fans of the show and no lesser a figure than David Cameron, Clarkson constituency neighbour and friend, claiming his children would be "heartbroken if Top Gear was taken off air").

Clarkson's soon to expire BBC contract will not be renewed. He was already on a final warning, following claims he deliberately used a racist word during filming Top Gear’s Burma special in 2014. Amazingly, this came just months after calls for Clarkson’s sacking for allegedly using another racist word in an outtake leaked to the media. Outspoken Sun columnist Clarkson is well known for his un-PC remarks and opinions, of course, including once saying striking public sector workers should be "taken outside and executed in front of their families".

Key lessons

Clarkson is one of the world's most famous TV presenters, thanks to Top Gear's enormous global popularity (watched in 214 countries, it makes an estimated £50m a year for BBC Worldwide in overseas sales and £15m from events and Top Gear Magazine). He's reported to have earned "tens of millions of pounds from the global licensing of the Top Gear franchise". Many new lucrative opportunities will no doubt come Clarkson’s way and the BBC has said Top Gear will continue without him.

This latest unsavoury episode has made Clarkson even more of a 'Marmite' personality. He's loathed and liked with equal passion (more than a million people signed a petition calling for his reinstatement), but whatever his popularity and undoubted broadcasting talent, clearly his behaviour in March was totally unacceptable (which he accepts).

So, what lessons does it offer employers? Well, you need to have a robust disciplinary procedure. Your employees must understand what constitutes gross misconduct (this should be explained within your employment policies and possibly a workplace code of conduct) and know what action your business will take if they cross the line. Everyone should know that violence, abusive or racist language and all forms of unlawful discrimination have no place in your business. But sometimes even having all of the above won’t ensure acceptable behaviour, so, your should remind yourself how to lawfully terminate a employee’s contract. And on that bombshell…

Blog written by freelance editor, copywriter, journalist and Start Up Donut editor Mark Williams.

Photo: Featureflash /

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Is it me, or is it hot in here…?

April 09, 2015 by Liz Dawe

Is it just me, or is it hot in here…?{{}}Yes, it’s the standard self-deprecating line from menopausal women, but menopausal symptoms in real life are not much of a joke and can affect the working lives of the 3 million-plus women over 50 in the workplace.

While the symptoms of the menopause are very common, including hot flushes, irregular or heavy periods and interrupted sleep, very few workplaces have any policy on accommodating the needs of women during this phase of their lives.

Despite an employer’s general duty of care to staff, and legislation on treating both genders without discrimination, in practice the menopause is still a taboo subject and women may be reluctant to flag up their needs or difficulties or ask for adjustments to be made.

Simple strategies such as providing desk-top fans where the workplace temperature can’t be regulated or varied, access to cold drinking water, sufficient toilet breaks and facilities for changing clothes or even adapting uniforms, could make a significant difference to women’s experience of the workplace and, consequently, to their productivity.

The physical and psychological changes that many women experience around the menopause can have a significant impact on their mental health and self-esteem. For women and for employers, addressing these issues without blame or ridicule could help employers retain experienced staff and enable women to enter the next stage of their working lives with confidence.

A recent leaflet, produced by Unionlearn with the TUC, looks at the most common symptoms of the menopause, the Health and Safety implications for employers, and suggests ways to support staff affected.

In the name of equality and work-life balance we’ve made great strides recognising the needs of pregnant workers, parents and disabled employees. Maybe it’s time to look at the (usually transient) needs of another significant section of the workforce and shed another taboo.

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Immigration law infographic

February 03, 2015 by Guest contributor

This useful infographic, from Taylor Rose Law, looks at an employer's responsibilities and liabilities around an employee's right to work.



Ten things you could have learned from our blog in 2014

December 08, 2014 by Mark Williams

10 things you could have learned from our blog in 2014{{}}1 “If you run a business, it is advisable to seek professional help in writing a will. For example, if you are a majority shareholder but die unexpectedly without having a will, your shares, and therefore, majority ownership of the business, would be subject to the intestacy rules.”

From Why business owners need to have a will by Rob Martins.

2 “Health and safety is all about risk prevention, and in worst-case scenarios, what to do if an accident occurs. First, start by assessing potential risks in the workplace. Once these have been documented, state what you are doing, or have done, to control those risks.”

From Ten steps to creating a health and safety policy that works by Malcolm Tranter.

3 “The agreement should set out which matters require a higher level of shareholder support before being approved. This helps to protect minority shareholders from being ambushed during the voting process and is usually applied to decisions which have significant impact on the company.”

From Shareholder agreements - the basics by Saracens Solicitors.

4 “Both parents will be required to give their respective employers eight weeks’ notice before beginning shared parental leave. The required notice can be given before the child’s birth, enabling shared parental leave and pay to begin immediately after the compulsory two-week period of maternity leave.”

From How will the new parental leave rules affect your business? by Julian Cox.

5 “In certain circumstances, there is substantial risk, for example, if you offer a settlement agreement without having raised concerns about the employee’s work performance or conduct. You may try to claim that discussions and related documents are ‘off the record’ or ‘without prejudice’, but you are not entitled to treat them as such. If the employee refuses, they may argue the relationship of trust and confidence between you has been irretrievably eroded, and use discussions and any related documents as evidence in a claim for constructive dismissal and/or discrimination.”

From Settlement agreements: a guide for employers by Julian Cox.

6 “You will be expected to provide full details of your business interests in the event of a divorce, which should be backed up by paperwork. Clear and organised historical records can provide a paper trail that shows the court exactly how the business has been run and the involvement both partners have had. It will be better if you present this information, rather than your spouse, where details can be misinterpreted.”

From Protecting your business from the possible consequences of divorce by Vicki McLynn.

7 “By following medical advice from the GP, you can strengthen your position with regard to potential unfair dismissal and disability discrimination claims. While you shouldn't rely solely on medical advice, it can help to demonstrate that you have investigated the situation and taken into account all the circumstances before making any decision to dismiss. Proceeding to termination without medical advice can leave you open to a costly employment tribunal claim.”

From How to deal with long-term employee sickness by Davis Blank Furniss.

8 “Employment Tribunal submissions increased sharply between 2009/10 (628,000 cases) and 2012/13 (928,000 cases), with a marked rise in the number of women bringing Tribunal Claims as a result of alleged sex discrimination or unequal pay.”

From New minimum payment & tribunal stats UK

9 “Acas figures also show that cases heard under Pre Claim Conciliation – the forerunner of the new Early Conciliation scheme – cost just £475 and one working day compared to £3,700 and four days for an employment tribunal. This should all amount to less stress, cost and disruption for everyone.”

From Acas Early Conciliation service by Fiona Prior.

10 “Contrary to popular perception, pre-nuptial (and post-nuptial) agreements are not legally binding in England and Wales. Although the Supreme Court decision (in the landmark case of Radmacher v Granatino) strengthened the force of pre-nups and ruled that they should be upheld by the courts as long as they are fair, judges can still order different financial provision in the event of a divorce.”

From Could pre-nuptial agreements become mandatory? by Muna Saleem.

Many thanks to the experts who shared their knowledge in 2014 to ensure this blog remains so popular. A massive ‘Thank You’ to all our readers, too, of course, we hope you found that reading this blog was helpful, thought-provoking and enjoyable. Happy Christmas – here's to a fantastic 2015…

Further Reading

Ten things you could have learned from the Start Up Donut blog in 2014

IT Donut: best of 2014

Ten things we learned from the Marketing Donut in 2014

Ten things you could have learned from the Tax Donut in 2014


Employee tattoos, employment law and your business

October 08, 2014 by Guest contributor

Employee tattoos, employment law and your business {{}}Body art has become part of everyday life throughout western society. Long gone are the days when tattoos were considered a novelty favoured by specific social groups and subcultures.

However, not all employers welcome tattoos, so, should body art enthusiasts be told to cover up their tattoos at work or would this be discrimination? With one in five people in Britain now having a tattoo, this is a relevant employment law issue for many UK businesses.

Employer defence

Employers insist they have the right to make employees cover up if their appearance compromises the company’s image. But while there's plenty of examples of workers being asked to leave their job for having “excessive” tattoos, there's a growing number of dismissals of employees with minimal body art.

A recent example of “ink prejudice” involves a business consultant in Milton Keynes who reportedly lost her job because she has an image of a butterfly measuring 4cm across her foot. If body art is part of someone’s self-expression, surely censorship of this kind is not far removed from stifling expression of other parts of identity such as sexuality and religious belief?

Considering tattoos to be a form of self-expression also encourages debate over exactly what is an “acceptable” belief. Should a controversial symbol or phrase be permitted just because an individual believes in it?

No clearly defined rules

With no single set of rules in place for having tattoos, organisations are free to put their own in place – and alter them as they see fit. Larger businesses can seemingly get away with this due to their prestige, but smaller businesses relying on a specific image can be damaged if they don't have the right to influence employee conduct.

However, there is room for argument thanks to the Equality Act of 2010, which can be used to claim that censorship of tattoos is an infringement of someone’s human rights if the image relates directly to a religious or cultural belief. This law provides “protection for people discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic”.

But does a self-inflicted body modification truly count as a characteristic?

The future of workplace tattoos

With more people getting tattoos, it seems likely that body art will eventually receive less discrimination, but who gets to decide what is acceptable when it comes to body art? The questions are vast and opinions differ widely.

Copyright © 2014 Nationwide Employment Lawyers.

Further reading

Posted in Employment law | Tagged HR, employment law | 0 comments

Get ready for auto-enrolment pensions

September 08, 2014 by Fanny Marshall

Auto-enrolment pensions – get ahead of the game{{}}Are you an employer in the UK? If yes, you need to be prepared for the new law surrounding workplace pensions. Maybe you’ve already heard of auto-enrolment but think it won’t affect you as you only have a couple of employees. Or, as it’s being phased in gradually, you don’t need to worry about it for ages. If you do nothing, though, you may be caught out. The Pensions Regulator will always try and work with businesses to help them become compliant but it will issue enforcement notices that can lead to financial penalties for employers that don’t comply with their duties.

Staging dates (the date auto-enrolment starts) have already started for larger businesses (from 1 April 2014 – 1 April 2015 for businesses with 50 or more employees). Smaller businesses with fewer than 49 employees will need to start auto-enrolment between 1 August 2015 and 1 April 2017. This sounds like a long way off but The Pensions Regulator is advising that it can take at least a year to prepare properly for auto-enrolment. The first step is to check your staging date so you know when you need to start enrolling your staff. You can then use a planner on The Pensions Regulator website to help guide you through the process.

There is lots of information available to businesses about auto-enrolment pensions. You may view it as another unwelcome administrative burden on your business but the best way to lessen the impact is to get ahead of the game and find out what you need to do now.

More information on auto-enrolment:

Recent changes to flexible working rules: what do they mean for your business?

September 01, 2014 by Guest contributor

Recent changes to flexible working rules: what do they mean for your business?{{}}Until recently, requests for flexible working patterns were only available for parents of children up to the age of 17 (or 18 if the child has a disability) and for carers. But recently, the laws affecting the right to request flexible working hours have changed.

Since 30 June 2014, any employee who has a minimum of 26 weeks of service with the employer now has the statutory right to request flexible working conditions. So what is the impact of this change and who does it affect?

What is flexible working?

There are various types of flexible working, including working compressed hours (eg working five days’ worth of hours in four days), flexitime, job-sharing, shift work, remote working (eg working from home) and part-time working.

Who is entitled to request flexible working?

Before the change in legislation on 30 June 2014, this right was only available to parents and certain carers. Now, anyone who has worked for a company for a minimum of 26 weeks is entitled to submit a request for flexible working conditions.

A recent survey conducted by Powwownow found that 70% of respondents are aware of this change in the law. Surprisingly, 46% of those taking part in the survey were not aware of the previous law regarding flexible working hours.

When can I apply?

Anyone can make a request for flexible working from their employer, as long as the nature of the business allows for it. Employees are only allowed to make one request within a 12-month period.

The survey found that within the first week following the change in legislation, 8% of respondents taking part in the Powwownow survey had already submitted a request. A further 35% of those taking part in the survey said that they were considering submitting a flexible working request in the future.

How do I make a request?

Requests for flexible working hours must be made in writing to your employer. Within your request, you should include:

  • The date of your request.
  • The change in conditions you require (eg flexitime).
  • The date you would like the change to take effect.
  • If you have previously made a request for flexible working hours, and the date of that request.
  • What effect your change in working conditions will have on the business (eg will it be cost effective?)
  • State if you are making a request that relates to the Equality Act 2010.

Copyright © 2014 Jacqui Keep of Powwownow, providers of contract-free conference calling services

Further reading

How the dementia ticking timebomb could affect you and your business

August 21, 2014 by Mark Williams

Dementia{{}}Anyone who loves or loved a person affected by dementia will know just how cruel, indiscriminate and devastating it is. And the scale of the problem is getting significantly worse, with many commentators describing it as a ticking timebomb.

National charity Dementia UK estimates that 42% of the UK population has a friend or family member with dementia, with more than 820,000 people in our country having dementia and that number expected to rise to one million-plus by 2030. Alzheimer’s Research UK says dementia now costs the UK economy £23bn per year – twice as much as cancer and three-times as much as heart disease. 

According to Alzheimer’s Society: “The word dementia describes symptoms that may include memory loss and difficulties with thinking, problem-solving or language. Dementia is caused when the brain is damaged by diseases such as Alzheimer's disease or a series of strokes. Dementia is progressive, which means the symptoms will gradually get worse.”

Dementia Challenge

When launching the Government’s Dementia Challenge in March 2012, Prime Minister David Cameron said: “We’ve got to treat this like the national crisis it is. We need an all-out fight-back. Dementia is a terrible disease and it’s a scandal that we, as a country, haven't kept pace with it.” The Dementia Challenge seeks to significantly improve dementia care and research by 2015, as well as create communities that better understand how to help those with dementia, as well as their families and carers. Businesses large and small have a huge role to play in this.

In early August, Public Health England and Alzheimer’s Society released a new report into the implications of dementia for UK businesses, calling on employers to “adapt their working environments to support the increasing numbers affected by the condition”. 

It estimates that by 2030, dementia care obligations will cost UK businesses more than £3bn. If the number of people with dementia rises as predicted to 1.09m, the report says it will have a “huge impact” on businesses because “the number of workers reducing their hours, changing work patterns or even quitting, due to the demands of caring, is expected to grow”.

Counting the cost

The number of people forced to leave their jobs to care for a loved one with dementia is expected to increase from 50,000 this year to more than 83,000 by 2030. Yet, says the report, if “companies increased their employment rate of dementia carers by just 2% over the years to 2030, for example, by offering more flexible terms of employment, the retention of these skilled and experienced staff would deliver a saving of £415m”. The cost of skills and experience lost from the workforce because of dementia will rise from some £628m this year to £1.16bn in 2030, experts say.

According to the report, many businesses are already taking action, with 8% attempting to “accommodate” staff members with dementia, and 52.1% considering doing so in the future. Twenty major businesses (eg M&S, Barclays, BT, Argos, Lloyds Banking Group, Lloyds Pharmacy, etc) have already pledged to support staff and customers with dementia. 

Not being dementia friendly could harm your sales, especially if you’re a retailer. According to the report: “The spending power of households affected by dementia [will] double to £22.7bn by 2030, from £11bn in 2014”, with 62% of people with dementia wanting shops to have a “greater understanding of the condition”, and 23% having “given up shopping since being diagnosed” because shops don’t sufficiently cater for their needs.

Failure to change

Alzheimer’s Society chief executive Jeremy Hughes says: “Thousands of people affected by dementia are forced to give up work and are denied a lifeline because of the failure of organisations to change the way they do business. From the shop floor to boardrooms, dementia affects every workplace; from people struggling with the early symptoms of memory loss at work, to those juggling a job while caring for a loved one. As the condition touches the lives of more people, businesses must gear up to support all people with dementia – staff and customers alike.” 

In light of the potential effects of this significant increase in dementia, family-owned firms must also carefully consider whether their management and succession plans are sufficiently robust. And maybe all of us need to give much more serious consideration to power of attorney, so that someone we trust can make important decisions on our behalf, after dementia has so cruelly robbed us of that option.

• Blog written by Start Up Donut editor and freelance content writer Mark Williams. 

Further reading


How to make flexible working work for your small business

August 11, 2014 by Guest contributor

How to make flexible working work for your small business{{}}Almost all employees in every business now have a right to request flexible hours. You of course have the right to decline, for one of eight allowable reasons. But there are often many business benefits to be had from flexible working.

Initially we introduced flexible working to attract programmers. They are really hard to recruit and we identified it as something that would help us attract the best candidates. We thought it would appeal to their tendency to work late mornings and into the night, and after weighing up the costs, we discovered that with a simple IT system, staff could self-monitor their time.

It proved so successful we decided to extend it to all our technical staff. Our primary motive was to keep our staff happy. Flexible hours allows them to fit work around their lives, which is important, motivationally, when we know that our staff work to live.

Our staff also recognise that it’s a perk they won’t get in many companies. Meaning it’s not only great as a retention tool but it’s a benefit they respect. There is no abuse of the system.

Over three-quarters of eligible staff have taken us up on flexible working. Luckily we have a nice split of staff who prefer to start early and those who prefer to stay late. Interestingly, all opt in to cope with traffic on their commute.

Operationally, it is managed via a clocking-in system, with each employee tracking his or her own time. We also stipulate the scope of the policy in our company handbook, which forms part of their employment contract, so we don’t constantly have to answer questions.

The one condition we make (which we’d recommend) is to ensure staff are present each day for what we term ‘set cover hours’. This means we always have a fully staffed office at key times. Plus it means that our staff don’t work long shifts so they can take a day off each week. That’s unmanageable. Instead, the maximum full day off they can claim is one a month.

Unfortunately, we can’t offer flexible hours to everyone. It’s just not possible given their roles. Our call centre is a prime example. We need the customer service provision staffed when customers want to speak to us. However, as long as you’re able to explain why, all staff understand, accepting it as part of their job.

The only issues that have ever arisen is if staff can’t manage their own time. The worst cases take more than they give, meaning by the end of the week they are in minus hours. The only solution is to suggest they pull in some long shifts or take the time as holiday.

Overall, though, we’ve found flexible working to be a real plus. Staff see it as the perk it should be and it therefore retains as well as helps us recruit, without incurring massive overhead costs. It’s win-win. Just make sure you set clear parameters that can be rolled out, as far as possible, across the board.

Copyright © 2014 Ian Cowley. Ian is managing director of, which has benefited since introducing flexible working more than five years ago.

Further reading

How to deal with grumpy employees

July 07, 2014 by Mark Williams

How to deal with grumpy employees{{}}Many of us will have worked with a grumpy colleague or employee, people who are best avoided some or even most of the time. Some of us may even be those very people, of course. Having to share oxygen with grouchy, cantankerous, huffy, prickly, churlish, sniffy, waspish workplace Victor Meldrew types, who function as ‘drains’ rather than ‘radiators’, is energy-sapping. But the good news for employers is grumpy staff are more productive.

That’s according to a study carried out by the universities of Illinois and Pennsylvania, as published recently in the journal Social Psychology (and reported by Mail Online). Such employees (tagged ‘Haters’ by the researchers) usually become better at their jobs because they’re more focused on work and concentrate on fewer tasks, which enables them to hone their skills and be more productive.

More popular workplace ‘Likers’ (ie bonhomous types who radiate positivity) usually spread themselves more thinly, which makes them less productive, according to the research. They struggle to restrict their attention to one task, because they perceive “many interesting opportunities in their environment”. Consequently, they only develop skills to a certain level, albeit more widely.

Some employers might be perfectly willing to leave otherwise productive employees to their grumpiness, but what if a staff member’s simmering anger, moodiness and general attitude problem become intolerable? This could become a big problem for your business – especially if they come into contact with your customers.

Addressing the problem

As any seasoned people manager knows, you must address unacceptable staff behaviour as soon as it arises, otherwise it can send out the wrong message that it’s tolerated within your business. Employers are advised to take grumpy employees to one side for a private word. You should explain the effects your employee’s belligerent, curmudgeonly ways are having on their colleagues and/or other aspects of your business (in the worst cases, it can seriously damage team morale and sales).

According to the Acas guide Discipline and grievance at work: “Cases of minor misconduct or unsatisfactory performance are usually best dealt with informally. A quiet word is often all that is required to improve an employee’s conduct or performance.”

If the employee’s anger is work-related and valid, it should be addressed. If it’s related to a personal issue, you can offer support (although employees should know that personal matters should not be allowed to affect their work if possible). Having a written policy or code of conduct describing acceptable behaviour and attitude can be enormously helpful.

Formal action

A quiet word might be all that it takes to ensure that the employee mends their ways (or at least treats others in a more acceptable manner). They might even be grateful for being able to get something off their chest.

But as the Acas guide concedes: “There will be situations where matters are more serious or where an informal approach has been tried but is not working. If informal action does not bring about an improvement, employers should provide employees with a clear signal of their dissatisfaction, by taking formal action.”

  • Blog written by Start Up Donut editor and freelance content writer Mark Williams.

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Posted in Employment law | Tagged HR, employment law | 0 comments

How will the new Defamation Act protect online reputation?

June 23, 2014 by Guest contributor

How will the new Defamation Act protect online reputation?{{}}As a business using social media, it is important to remember the following:

  • When you publish something on social media it tends to be permanent;
  • Although the communication may be intended for a particular audience, it can be disseminated, beyond your control, far more widely;
  • International law, including the European Convention on Human Rights (as incorporated into our law by the Human Rights Act 1998), recognises the right to freedom of expression;
  • However, the same laws recognise equally important rights such as privacy and reputation.

Protecting reputation is a primary concern for businesses. In this country, the predominant area of law used by individuals and organisations to protect their reputation is the law of defamation. This area of law was recently subject to new legislation and the Defamation Act 2013 came into force in January 2014.

Section 1(1) of the Act has introduced a new test of actual or likely serious harm. For claimants that trade for profit, section 1(2) says that harm to reputation is not serious unless it has caused, or is likely to cause, serious financial loss.

These serious harm and serious financial loss tests are designed to discourage trivial claims.

What does the new test mean for my business?

For a claimant to successfully sue a defendant for defamation, section 1 has added a new layer to the existing law. A claimant will be required to demonstrate that the words complained of:

  1. Caused, or are likely to cause, serious harm to the claimant’s reputation; and
  2. Tend to: (a) expose the claimant to hatred, contempt or ridicule, or; cause the claimant to be shunned and avoided by others; or (b) lower the claimant in the estimation of ordinary right-thinking people.

For businesses, the serious harm requirement is subject to section 1(2), which states: “harm…is not ‘serious harm’ unless it has caused or is likely to cause the body serious financial loss”.

This is likely to mean that businesses will need to specify in their particulars of claim: (i) that the statement has caused or is likely to cause serious financial loss; (ii) particulars of the loss incurred, and how this has been caused by the defamatory statement(s); and (iii) why the loss incurred is serious.

During consultation, the Ministry of Justice suggested that a statement is not defamatory unless it caused “substantial harm” to the claimant’s reputation. According to the Lord Chancellor, the serious harm test has been drafted to allow the court to consider all the relevant circumstances of the case.

The Act is as vague with regard to serious financial loss. In pre-Act Parliamentary debates, there was discussion about whether a fall in share price could demonstrate serious harm or if this could only cover a company’s profit, loss and sales, not variations in share value. At the moment, nobody knows. This will have to be interpreted by the courts in due course.

How is loss measured?

A business will need to establish causation by demonstrating that the defamatory statement caused, or is likely to cause, serious financial loss. Difficulty arises when a loss has been caused by several statements, of which only one is actually defamatory.

In order to establish causation, the claimant would have to prove that this statement caused, or is likely to cause, a serious financial loss. This is compounded by the difficulty of quantifying the loss. It may prove impossible for a company to separate what loss is linked to the defamatory statement and what is linked to other, legitimate damage to its reputation.

What price reputation?

Arguably a business’s reputation could be damaged without it suffering financial loss per se. Thus, a business could suffer serious reputational loss and vindicating its reputation could prove to be difficult, prolonged and expensive.

Satisfying the serious financial loss requirement in these circumstances may only be achieved by establishing a link between the statement and its consequences — an inability to recruit suitably talented employees, for instance. Evidentially this would be hugely challenging. Protracted claims of this type also give rise to another problem: the existence of the claim may expose the business to more negative publicity, resulting in further reputational damage. In other words, the claim itself could make the situation worse.

There is no doubt that the legislation will impact on the ability of businesses to vindicate their reputation effectively, whether it has been attacked through social media or by other means. However, because the Act has only just come into force, we’ll have to wait and see as to how the Act will be interpreted by the courts.

Peter Coe is a senior lecturer in Law at Buckinghamshire New University and a Barrister at East Anglian Chambers.

What if one of your employees was diagnosed with a serious illness?

June 18, 2014 by Guest contributor

What if one of your employees was diagnosed with a serious illness?/Doctor talking with woman{{}}If one of your employees is diagnosed with a serious illness, you need to understand your legal responsibilities regarding the support you are legally obliged to provide, as well the employee’s legal obligations.

Technically, if an employee is diagnosed with a long-term illness such as cancer, they are defined in law as disabled, and once under the Disability Discrimination Act (DDA) employers must make changes to accommodate the employee’s needs at work. 

What serious illnesses are defined legally as disabilities?

If you have any kind of long-term, serious illness it could be defined as a disability in law. Impairments must be long-term and substantial to count as a disability and they can be physical or mental. They must affect you for 12 months and significantly impact your daily life (eg it may take you much longer to get dressed in the mornings than if you didn’t have the impairment).

Progressive conditions, such as motor neurone disease or muscular dystrophy, also count, although these are assessed case by case. You automatically meet the “disability” criteria if you are diagnosed with HIV, cancer or multiple sclerosis. Generally, it is the effect of your impairment on your daily life that is considered when disability is defined legally. An underlying condition is not assessed; its consequences are. Technically, a person who is terminally ill is also defined as disabled.

There are certain impairments that are medically defined as mental illnesses that aren’t defined as a disability (eg kleptomania, addiction and pyromania).

What does it mean if your employee is disabled?

If you’re employee meets the definition of disabled you must be aware of the Equality Act 2010, the most relevant aspects concern protecting your employee from any discrimination because of their disability. As an employer you must make “reasonable adjustments” to aid your employee in the workplace. This might be simple things like moving their desk or it could be allowing them to work from home for some time or allowing more time for doctor’s appointments, etc. You should show that you are doing your best to work with your employee and everything reasonable to enable them to continue to work.

The same obligations apply if your employee has a terminal illness. You might assume that an employee will want to stop working, but a lot of people want to continue working despite their illness to retain a sense of normality.

An employer must take into account a serious illness in every instance. You can’t reprimand an employee for taking too much time off for doctor’s appointments if they have cancer, for example. Also, you can’t give them an unfavourable appraisal because they haven’t met objectives as a result of their illness, without taking the illness into consideration.

What are “reasonable adjustments”?

There’s no fixed description, but adjustments are dependent on cost, how much they will help you, how practical it is to make them and whether the adjustment will affect the business, service or financial situation. Cancer support charity Macmillan lists examples of reasonable adjustments for employees with cancer (but these also apply to other illnesses):

  • allowing time off for medical appointments
  • changing job description to remove tasks that cause problems
  • allowing more flexible work hours
  • giving extra breaks if the employee feels very tired
  • letting employees do light duties for a temporary period
  • changing performance targets to take into account the effect of any sick leave or treatment side effects (eg fatigue)
  • moving the employee (by mutual agreement) to a role with more suitable duties
  • changing the place of work (eg a ground floor office if breathlessness makes it difficult for the employee to climb stairs)
  • ensuring access to place of work if mobility equipment (eg wheelchair or crutches) is used
  • making available computer equipment that might help (eg voice-activated software if the employee can’t type)
  • allowing employees to work from home
  • providing a disabled toilet
  • allowing employees to return to work gradually following a long period of time off.

What about pay?

You must pay statutory sick pay (SSP) to your employee if they have to have long periods of time off. You’ll only have to pay this for a maximum of 28 weeks. If your employee is off for a chunk of time you must leave their position open for them to return to. It is absolutely illegal to dismiss them.

Once the 28 weeks is up you do not have to pay SSP and your employee should move on to Employment and Support Allowance if they are still unable to work.

Blog provided by Simpson, Sissons & Brooke Solicitors.

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