A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
Happy New Year!
The decorations are coming down (if not down already), all that is left of the Christmas cake is the lump at the end with the marzipan and icing, the jeans are a tad snug, and January, the month of credit card bills, rain and general greyness, is upon us! There is only one thing for it; time for an HR detox!
There’s no need for spinach-based smoothies or gym routines at the crack of dawn, and definitely no bulk order of chia seeds required. This is one detox that you can carry out painlessly, but with maximum effect – get rid of bad habits and put in place better ones. What could be easier?
Detox the following:
And finally: what's next for 2019?
Falling behind on appraisals and performance management
Like eating too much sugar, this bad habit is an ever-present foe. It is the thing that many managers dislike and subsequently do not prioritise, and so when life gets hectic, this is what gives. In the long-term, this is not good news for either employer or employee; the former has no direct way to gauge staff’s well-being or suitability for the job, and the latter has nothing to work towards or any indication that they have been noticed or are of value and worthy of investment.
To detox this habit, there’s no requirement for your “Nutribullet”, instead ensure that all managers with responsibility for staff development are trained, confident and understand the benefits of this process. Check the paperwork that accompanies the process and ensure it is user-friendly, easily accessible and relatively intuitive as part of a healthy manager/employee relationship.
Letting training slip
Training, whilst costly for the bottom line, ultimately saves money and brings long-term gains. The key training for 2018 was on the subject of GDPR, which, as you may remember, came into force on 25 May and very few organisations and employers will escape its grip! Check within your organisation that everyone who needs the training has received it and, now that we’re eight months in, maybe roll out some refresher sessions. Our ebriefing from 11 May gives a useful overview.
Overlooking sickness absence
Like performance management and appraisals, managers are sometimes loathed to carry out processes in place for sickness absences. Again, these processes might feel awkward and when done wrongly, can be seen as belligerent. However, when done correctly, have benefits for all parties.
After a period of sickness, back-to-work interviews are a useful catch-up for a manager; is the employee overworked, stressed or hiding some underlying condition of which the company should be aware? Ignorance is not going to provide good defence in a tribunal to an easily detected underlying disability or problem, had the employer had better practices in place. Alternatively, if frequent flyers know that any sickness absence, especially for those ‘bugs’ that repeatedly hit on a Friday or a Monday is always followed up, this might act as a deterrent and so assist in the restoration of full health. In 2018, we helped one housing association streamline their sickness absence procedures and increase the focus on managing absence through training, which resulted in significantly reduced sickness absence figures.
Failing to address holiday issues
Rolling over holidays, whilst it might be great for an employee planning a big trip, is often a nuisance for employers. Just when everyone is settling into the new year, someone with weeks of rolled over holiday takes off for four weeks’ leave, leaving their colleagues rather jealous, resentful of their increased workload and planning their holiday roll over for the next year.
To detox this particular problem, keep accurate records of absences and do not be pressurised into agreeing that employees can roll holiday over, without first checking the individual’s ‘holiday history’, i.e. are they making a habit of this? Also, be sure to check within their work team to ascertain the implications of extended holiday periods.
Be aware, however, following a European Court of Justice (ECJ) case this year, which is still enforceable until the end of March 2019 at the earliest. The ECJ found that workers may be able to carry over holiday, even without their employer’s permission, if that employer has not ‘diligently’ brought the outstanding holiday to the worker’s attention, and given them ample time in which to take it. We wrote an ebriefing on this ECJ case, which can be found here.
Whilst on the subject of holidays, we would encourage all employers to review their arrangements in relation to accrual of holiday (in particular for part-time workers or those engaged on zero-hour contracts), and the calculation of holiday pay (in particular where workers work overtime or receive other payments on top of their basic pay). Two cases this year are particularly worthy of note:
- If you have term-time-only workers (or any other part-time workers), do check the calculation you are using for assessing holiday pay. You do not want to end up in the same position as the Royal Borough of Greenwich, who, after a five-year battle with Unison, have agreed to the payment of settlement monies of £4million. Unison alleged that the term-time workers’ holiday entitlement was not comparable with full-time equivalent workers. You can find out more on this topic, here.
- If you have workers who are regularly paid for overtime, in most circumstances this overtime pay has to be taken into account when calculating holiday pay. Do not despair! The Employment Appeals Tribunal (EAT) have qualified that overtime payments will need to be paid regularly and on a reoccurring basis if this is to be the case. Read our ebriefing on overtime regarding calculating holiday pay, here.
The issue of holiday accrual and holiday pay has been affecting many sectors for a number of years (in particular, employers in the social housing and social care sectors). We have given repeated advice to clients on whether their particular arrangements are compliant, what changes they ought to be making, and how to implement those changes without raising significant concerns among the workforce. We also have a Holiday Pay Toolkit available, which sets out all you need to know about the current legal and practical position regarding holiday pay arrangements.
Losing new starters
Recent studies have shown that 1 in 4 new employees leave their jobs within a month of starting. The recruitment costs of this turnover are huge, especially considering these costs are avoidable. This may, of course, be to do with unrealistic expectations of new employees, but employers should also take some responsibility. Often individuals on interview panels have had no or very little interview training, and come unprepared for the process. If employers want to find the right fit and skill set for a role, interviewers must do the following:
- Have completed appropriate training so they know how to ask the relevant questions and get the best out of candidates;
- Understand what the role needs and then understand what the candidate wants, and assess whether these marry up;
- Be flexible about the working pattern for the role; can you accommodate a great candidate with additional requirements, such as flexible working?; and
- Not over-promise on the role, the promotion projection or what the employer can offer.
The same rules apply once you have secured your appointment. Managers need to ensure that they deliver on the promises made during the recruitment process, train new starters appropriately and embed them into your organisation early on so that there is no reason for them to leave.
What’s next for 2019?
Brexit is likely to be dominating our politicians’ minds still in 2019. At the time of writing, we have no clear direction of travel. However, in the result of a ‘no-deal’ Brexit, we’ve considered what the implications will be for data protection, employment and procurement and State aid. You can read our ebriefing on this, here.
The legislation of note is essentially the Employment Rights Act 1996 (itemised Pay Statement) (Amendment) (No.2) Order 2018, which comes into force in April 2019. The Act states that all workers (as defined under s230(3) Employment Rights Act 1996), will have the right to be given a written, itemised pay statement at or before the time at which their wages or salary is paid.
The Good Work Plan, published 17 December, is the Government’s response to the “gig economy”.
Cases to watch include:
- Capita Customer Management Ltd v Ali – where a father takes shared parental leave, should he be entitled to an enhanced shared parental leave payment in the same way that a mother on maternity leave would be entitled to enhanced maternity leave? This case is currently awaiting a Court of Appeal hearing date. More information on the debate of enhanced shared parental pay for male employees can be found in our ebriefing on the topic, here.
- Uber B.V. v Aslam – the Court of Appeal held in December that Uber drivers are classed as workers. The Supreme Court has granted Uber permission to appeal the decision.
- Mencap Society v Tomlinson-Blake Shannon v Rampersad (t/a Clifton House residential Home). Following the Court of Appeal’s judgement earlier in 2018 where the Court held that only time spent awake and working during a sleep-in, counts towards the calculation of a National Minimum Wage (NMW), we wait to see whether the Supreme Court will grant permission for Unison to appeal this decision. You can find more details on this case and ‘the sleep-in-saga’, here.
For more information
If you require assistance with any of the above areas, please get in touch with your usual contact in our Employment Team or contact Anna Dabek. You can find out more about our employment work on our website.
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We’re delighted to announce that we have been ranked in the top five national legal advisers in the Top 3000 Charities 2021 directory.
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The proposals concerning dynamic purchasing systems (DPS) and framework agreements are the most disappointing aspect of the Green Paper.
Family team partner, Elizabeth Wyatt, is delighted to congratulate Kadie Bennett for attaining Resolution Specialist Accreditation in both children law - private and complex financial remedy matters.
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