a fresh perspective

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Two’s company

Two’s company

 

Fiona Munn and Fraset TaitFiona and I are delighted to have launched our new company, Falkirk Employment Law. For the first time ever, local employers have access to an employment law service that is dedicated to law in the workplace, right here in Falkirk.

 

Falkirk Employment Law is the sister company of our full service legal firms Marshall Wilson and Tait Macleod and as the name would suggest, this is the only local firm to offer employers this targeted employment law service in the area. And to demonstrate our passion and commitment to the area, we are proud to have used the iconic Kelpies within our new brand identity for the business; we hope that you like it.

 

If you employ staff, you will know that employment law is a complex area and can be a minefield to keep up with. This is a highly regulated and ever changing environment and it can be all too easy to find ourselves with a problem simply through being busy and not being aware of an issue until it arises. But by working with you, we can usually avoid these situations even happening in the first place by making sure that everything is in order and up to date, that contracts and policies are compliant with changes in the law and if issues do arise, we have the expertise to deal with them effectively and efficiently for you.

 

By getting the right advice, you have the reassurance that you are treating your employees fairly and properly at all times, safe in the knowledge that we will act in the best interests of your company whilst making sure you meet your legal obligations as an employer too. Not only do we bring our employment law service to employers here in Falkirk, our clients also benefit from the full support and expertise of the national United Employment Lawyers group. As the Falkirk representative in this collaborative network of lawyers across Scotland, we can rightly claim that we are the employment law experts in this part of the country.

 

And because we design bespoke Employment Law Packages for each individual client, you benefit from the support and advice that’s right for you and your company. Not only that, we are able to bring you the finest employment law advice and representation but at a price that is realistic and affordable to businesses of all sizes. Even though our service is specialised, that doesn’t mean that you have to worry about the expensive hourly billing rates of big city firms, instead you can benefit from the highest standards of service and advice but in sensibly priced packages. By investing in expert advice up front like this, you have the reassurance that everything is in order and that it will also save you a considerable amount of time and money in the future.

 

Because we recognise that every business and situation is unique, we don’t deal in off the peg solutions, instead we offer a flexible service that is tailored to all businesses and industries.

No matter what type and size of business you have, we offer expert advice that is designed specifically around your individual needs.  As well as that we are more than happy to bring this bespoke legal service direct to your workplace, at a time that suits you and at a cost that is easily affordable.

 

We are proud to bring our unique employment service to local employers.

How to handle long term absence

Managing long term absence in the workplace is one of the most difficult issues for employers to deal with; this article provides a useful guide to your legal obligations as an employer and the correct procedures to follow.

Days lost to sickness have fallen markedly in the last twenty years with a decline of more than a quarter over the period, according to the Office for National Statistics.

It would be good to think that this is purely because the UK is now a much fitter and healthier nation. But in reality, much of this can be put down to improved strategies in dealing with absenteeism in the workplace and a much better understanding of the main issues and causes by employers.

Absence in the workplace can have serious effects on costs and productivity and it is really important that organisations have proper absence management procedures in place. Employers are generally now better equipped to deal with absence and improved monitoring means that it is easier to identify patterns of absence and their possible causes. This has also given employers a better insight into problems that might be common within particular types of work or industries. For example, there might be increased absence levels where there are high levels of overtime or frequently rotating shifts. It can also be more common in larger organisations where individuals feel less likely to be missed. By contrast during times of economic uncertainty, people are much less likely to take sickness leave because of worries about their job security.

There is now a wider recognition that absenteeism can be caused by issues in the workplace and a good absence management procedure will uncover the cause of persistent absences and enable the employer to make necessary improvements. These could include changes to job design, improving the quality of working relationships and the introduction of flexible working arrangements.

MANAGING LONG TERM ABSENCE

 

Despite these improvements however, handling the long term absence of an employee is a delicate matter. Indeed it is probably one of the most difficult situations an employer has to handle in the workplace.

The illness concerned may be serious and might require an operation and recovery time or it could be a mental health illness. It goes without saying that all of these illnesses require a sympathetic and understanding approach from the employer. However it might be the case that you suspect that the illness is being drawn out to delay a return to work by your employee.

Whilst both of these situations are totally different, both can cause a major disruption to the productivity of your business and add considerably to the workload of other employees. How you manage both situations can be fairly similar but do remember that they are both completely different and require the employer to act with sensitivity but in very different ways.

In both situations you should: 

  1. Assess if other colleagues can manage for a time without a replacement or whether you need to hire someone on a temporary basis.
  2. Keep in regular contact with the employee about their position, be clear about their sick pay and explain any work related developments and updates such as promotion opportunities or any other important workplace changes.
  3. Consider whether it might be better in the particular situation to simply keep in touch and give the employee the time they need to get better rather than bringing the issue of long term absence to a hearing.
  4. Consider whether you need to ask the employee for permission to contact their GP, or whether they should see a company doctor, so that you can assess:

 

  • When will a return to work be possible?
  • Will there be a full recovery and is a return to the same work advisable?
  • Should the return be phased, perhaps part-time work or flexible hours to begin with?
  • Whether or not the employee is disabled. If that is the case reasonable adjustments will need to be considered to see if they can return to work.
  • Whether a return to lighter, less challenging work would be advisable.

When absence is confirmed to be due to a medically certificated illness or disability, the issue becomes one of capability rather than conduct. Employers then need to take a sympathetic and considerate approach, particularly if the employee is disabled and where reasonable adjustments at the workplace might enable them to return to work.

HOW CAN I HELP AN EMPLOYEE RETURN TO WORK AFTER A LONG ABSENCE?

 

Employees are often understandably anxious about returning to work after a long absence and they may have questions to ask you such as:

Has my working environment changed? If the sickness was work related they may be concerned about using the equipment and if that is the case have you reviewed your risk assessment?

Could you make reasonable adjustments for me? If they are disabled, or have become disabled, you are required to make reasonable adjustments to help them back to work

What do my colleagues know about my absence? You need to reassure the employee that all discussions and paperwork about their illness have remained strictly confidential and ask the employee how they wish to handle the subject of their absence with colleagues or in team meetings.

 

GETTING BACK TO WORK

Employees also need to be reassured that you have given some thought to their return to work and you need to talk to the employee about a ‘getting back to work’ programme. This might involve:

  • Shorter hours in the first few weeks or flexible hours.
  • Catching up on any new developments within the organisation.
  • Training on new equipment or new processes and procedures.
  • A friendly chat about what’s been going on at work to give them an update.

 

WHAT IF IT APPEARS THAT THE EMPLOYEE IS UNLIKELY TO BE ABLE TO RETURN TO WORK:

In the case of a long term absence where advice about a possible return to work is needed or even more importantly if the employee’s job can no longer be held open and if no suitable alternative work is available, it is always advisable to seek medical information, either from the employee’s own doctor or from a company doctor. If you wish to contact the employee’s doctor, you must notify the employee in writing that you intend to make an application and you must secure the employee’s consent in writing. If you have a company doctor the employee should be asked if they would agree to be examined by that doctor. If an employee refuses to cooperate in providing medical evidence, or to undergo an independent medical examination, the employee should be told in writing that a decision will be taken on the basis of the information available and that it could result in dismissal.

The doctor should be given clear information about the employee’s duties and invited to comment on their ability to carry out those duties, the timescale for their likely recovery to a point where they would be able to carry out those duties, their ability to carry out any lighter or alternative duties if it is open to the employer to provide such alternatives and any reasonable adjustments which would allow them to return to work in their own role or in an adjusted role.

 

Having obtained the medical advice the employee should be invited to a meeting to discuss the absence in light of the medical advice. If alternative duties or reasonable adjustments are an option these should be fully explored with the employee who must be given the opportunity to provide their own input on the doctor’s view. It is hoped that in most cases the absence can be brought to an end by working with the employee in light of the medical advice.

 

If the medical advice suggests that the employee is considered unable to return to work within a reasonable period of time the employee should be invited to a meeting to discuss possible termination of his contract on the grounds of incapacity. He should be given notice of the meeting, copies of the medical information which the employer has obtained and indeed any other relevant information. This should be given to him in advance of the meeting in order that he can properly prepare for the meeting. At that meeting due consideration must be given to any points made by the employee and if necessary the employee’s view should be further canvassed with the doctor. If after following this procedure it is still unlikely that the employee will be able to return to work within a reasonable period the employee should be dismissed with notice. The dismissal should be confirmed in writing and the employee should be advised of his right to appeal that decision in accordance with the company’s disciplinary procedure.

 

An employer who approaches this procedure with an open mind and takes thorough advice from a doctor is unlikely to be found to have unfairly dismissed an employee in such circumstances. Any attempt to push through the procedure too quickly or to substitute medical advice with the employer’s own view of what common sense tells him can lead to a finding of unfair dismissal which can prove much more costly , both in  time and money, that taking the time to follow the procedure cautiously but thoroughly. The law and the tribunal system recognises that sometimes an employee simply cannot return to work and in those circumstances it is necessary to terminate his contract provided this fair procedure is followed.

 

There are clearly established procedures which must be applied when managing the delicate subject of long term sickness in the workplace. If you need specialist help and advice in managing a case of long term absence please don’t hesitate to get in touch with us.  

 

Zero or Hero?

Dundee Employment Law, your specialist helpOfficial figures recently published by the ONS show that the number of workers on zero-hours contracts has exceeded 800,000 for the first time.

 

This figure represents 2.5% of the employed UK workforce, but the data also showed there are approximately 1.7 million such contracts, indicating that many workers have more than one zero-hours contract. This increase has renewed fears amongst opponents that employers are using cheap casual labour to cut costs and avoid making proper commitments to their workforce.

 

Workers on zero-hours contracts are more likely to be young, part-time, women, or in full-time education compared with other people in employment. An average zero-hours contract provides 26 hours of employment a week and one in three of those on a zero hours contract would like to work more hours, compared with just 10% of those in stable employment who wanted to work more hours.

 

But the concept of zero hours contracts can, when operated fairly, make for very flexible working arrangements for employers and workers alike. However, some misunderstood aspects surrounding the legislation have emerged in the press about zero-hours entitlements, particularly in relation to maternity pay, holiday pay and travelling expenses.

In fairness, employers don’t have to offer work to people on zero-hours contracts and neither do these workers have to accept the work offered to them. But that said, the arrangement doesn’t change the fact that that zero-hours staff are in many cases entitled to the same rights, protections and benefits as any other worker. In the UK, taking a job with an employer can give someone either ‘worker status’ or ’employee status’ depending on the situation involved. In most cases zero-hours contracts provide worker status and as such workers have key rights, such as statutory annual leave entitlement and protection from discrimination. However, it does take employee status to qualify for certain other rights, including statutory sick pay and the right to request flexible working.

KEY POINTS TO UNDERSTAND:

  • Zero hours contracts normally mean there is no obligation for employers to offer work, or for workers to accept it.
  • Most zero hours contracts will give staff ‘worker’ employment status.
  • Zero hours workers are entitled to annual leave, the National Minimum Wage and National Living Wage and pay for work-related travel in the same way as regular workers.

What exactly is a zero-hours contract?

A zero hours contract describes a contract between an employer and a worker where:

  • The employer is not obliged to provide any minimum working hours, and
  • The worker is not obliged to accept any work offered.

When are zero hours contracts used?

Zero hours contracts can be used to provide a flexible workforce to meet a temporary or changeable need for staff. Examples may include workers used to cover:

  • Unexpected or last-minute events such as a restaurant needing extra staff for an event which has been cancelled by another venue.
  • Temporary staff shortages due to illness or unexpected circumstances.
  • On-call/bank work where the employer requires extra coverage for a short period of time.

It is important for employers to monitor the need for zero hours contracts and in many cases, it may be more effective or appropriate to use agency workers, or to recruit staff on a fixed term contract or if the need is more permanent then a permanent member of staff should be recruited.

FACTS ABOUT ZERO HOURS CONTRACTS:

Zero hours workers are entitled to annual leave

Any worker or employee starts to accrue their annual leave from the moment they begin working. This includes anyone working on a zero hour’s contract and if the contract means that employment is continuous then a worker should arrange when they take the annual leave with their employer.

If the zero hours contract means that the employment is broken on occasion, which happens when there is a period without work for a full calendar week from Sunday to Saturday, then a worker should receive a payment for any accrued but untaken annual leave.

Zero hours workers are not obliged to accept work

If the zero hours contract is genuinely a casual arrangement, the worker is not obliged to accept any of the hours offered. There is a risk that a worker who continually refuses work when an employer offers it may have his contract terminated by the employer. However, it is not good practice to try and force the worker to accept work, as this may call into question whether or not this is a genuinely casual work arrangement.

Zero hours workers have the same statutory rights around travelling time as other workers

There are specific rules concerned with travelling time and the National Minimum Wage and National Living Wage, which generally mean that a worker (with the exception of a commute) should be paid at least the National Minimum Wage when they are travelling as a requirement of their job. This right is enjoyed by those on ‘zero hours’ contracts.

Equally, it is generally the case that a worker who is required to be on-call and remain on the employer’s premises should be receiving at least the National Minimum Wage for doing so. Again, there is no different rule for zero-hours contracts; the right is the same.

However an employer needs to consider any contractual enhancement to these basic rights. For example, permanent workers may have additional pay or conditions attached so the employer needs to ensure that they do not inadvertently discriminate against workers on the grounds of protected characteristics such as age and sex.

Exclusivity Clauses

 

Legislation means that an employer cannot stop an individual from looking for work or accepting work from another employer when using a zero hours contract.

 

An employer must allow the worker to take work elsewhere in order to earn an income if they themselves do not offer sufficient hours. If an employer includes an exclusivity clause in a zero hours contract, the individual cannot be bound by it and the law states that the individual can ignore it.

 

If an employer dismisses someone for breaching a purported exclusivity clause the dismissal will be automatically unfair.

 

SUMMARY

As an employer you must make sure that contracts are clear and transparent so that the individual can understand their rights and what the implications of such a contract means to them. When offering a zero-hours contract, employers should consider including information such as:

 

  • Whether the individual is an employee or worker and what employment rights they are entitled to.

 

  • If the individual is an employee, how statutory employment entitlements will be accrued where appropriate, such as redundancy pay.

 

  • The process by which work will be offered and assurance that they are not obliged to accept work on every occasion if they so wish.

 

  • How the individual’s contract will be brought to an end, for example, at the end of each work task or with notice given by either party.

 

  • Employers should plan ahead and give as much notice as possible when offering work. Those who work on a zero hours contract may have caring responsibilities or have studies and may need to plan for childcare or around exams. Employers should be transparent about how they offer work, for example, is there a rota?

 

  • Cancelling work at late notice, or when the individual turns up at the place of work, is unacceptable unless truly unavoidable. Employers should consider putting into place a policy explaining the circumstances when and how work might be cancelled, and how they try to avoid this, and whether the individual can expect any compensation for caring costs they may have incurred.

 

  • When recruiting for a zero hours contract, the job should be clearly advertised as such and the individual should be clear that hours are not guaranteed, and that work may cease if there is a fall in demand.

 

  • Employers should ensure they familiarise themselves with their responsibilities when employing someone on a zero hours contract. Employers must comply with every aspect of the law, including employment law.

 

  • Those who take up work on a zero hours contract are often students, partially retired, or have caring commitments. As an employer you should respect the needs of those individuals to arrange care and be flexible in whether they can accept work at short notice or if they cannot arrange suitable care.

 

We hope that this article has provided you with some useful information about this type of working arrangement and indeed, that it has busted some of the myths that you might have read in the press. If you need help or advice about using zero hours contracts in your business then please don’t hesitate to get in touch with us.

 

Falkirk Employment Law
6 Park Street, Falkirk
FK1 1RE
T: 01324 430200