Stand By Me

The Right to a Companion and The Rights of a Companion

Employers and HR professionals frequently struggle with the concept of a worker’s companion and the role of the companion at a formal hearing.  Employers should be aware that a worker can claim compensation for an employer’s failure (or threatened failure) to allow the worker to exercise the various statutory rights associated with this role.

To what hearings does the right to a companion apply?
Any worker who is required or invited by his employer to attend a disciplinary, grievance or appeal hearing has the right to be accompanied by a fellow colleague or a trade union representative.
This right applies to:

  • all disciplinary hearings which could result in the worker receiving a formal warning or the employer taking some other (probably disciplinary) action with regard to the worker
  •  all grievance hearings and
  •  all appeal hearings

The right does not however apply to any verbal or informal warnings.

What is the companion permitted to say and do during this hearing?
During the hearing, the chosen companion is entitled to put the worker’s case to the employer, sum up the worker’s case, respond to expressed views on the worker’s behalf and confer with the worker.  Essentially this is a role of support for the employee.

Importantly employers should note that the companion has no right to answer questions on behalf of the worker, address the hearing without the worker’s consent or prevent the employer or anyone else from properly participating in the hearing.

Employers must allow the companion to fulfil this role, if required, at the hearing.

What about postponement requests?
The employer is obliged to agree to a request for a postponement of the hearing to accommodate a chosen worker, provided that:

  • the request is a reasonable request and
  •  any alternative time or date proposed delays the hearing by no more than five working days.

Are there any sanctions on employers for failing to provide these rights to workers and companions?
Workers may bring a claim against the employer where the employer fails to:

  • permit the worker to be accompanied by an appropriate person
  • allow the companion to exercise their statutory rights at a hearing or
  • agree to a proper postponement request.

A worker can also pursue compensation in circumstances where the employer threatens to fail to do any of these things.

What is level of compensation?
Whilst there is a three month limit for pursuing such a claim, successful claims can result in compensation of up to two weeks’ pay.  The calculation of a week’s pay is capped at £450 per week. 

In conclusion it pays for employers to ensure that they allow their workers (and companions) to exercise these rights.  Whilst one employee claiming two weeks’ pay might not be a sufficiently serious deterrent to an employer to getting it right, if you can imagine each of your employees making such claims, the incentive to get it right will be much greater!

Simon Allison
Partner – Employment Law

Snow Worries!

How employers can turn “snow worries” into “no worries”

Snow has been forecast for many parts of Scotland this week.  I suspect that, as usual, Dundee will escape the predicted snow fall however, with that forecast in mind, employers would be well advised to take pro-active steps when considering the repercussions of bad weather.

Absent employees – No dough

Employees are required to attend work even in extreme weather conditions.  If an employee is unable to attend work because of bad weather, an employer is generally entitled to treat the absence as unauthorised and is under no obligation to pay that employee.  Having said that, it is always preferable to make employees aware of any bad weather policy prior to the bad weather and best practice would be to have the policy clearly outlined in writing.  Employers would be well advised to consider creating bad weather policies to cover these scenarios.  Such policies should address how the employer will treat lateness due to bad weather and what will happen with regards to pay.

Closed workplace – No go

If an employer requires to close its premises at short notice due to extreme bad weather, in the absence of express written agreement the employer still requires to pay its employees their salary.  Even if there is no work available as a result of bad weather and office closure, it would be unlawful to withhold pay without the employees’ consent in writing.  Some employers have “lay-off” clauses in their staff contracts.  Such clauses can permit employers to lay-off employees without pay.  However these clauses can be relatively complicated and an employer should take legal advice about such a clause before attempting to operate it.

Untruthful employees – No snow

Occasionally employees will exaggerate the extent of the bad weather in their locality and might suggest that the snowfall is heavier than it is, in an attempt to enjoy an extra duvet day.  If an employer discovers that an employee has lied about the weather in an attempt to avoid attending work, the employer would be entitled to take disciplinary action against that employee on the basis of misconduct.  Before taking such action however, the employer would still require to conduct a full investigation and then reach a fair decision regarding the appropriate disciplinary sanction based on its reasonable belief.

School closures – No show

Whilst there is statutory protection for employees who require to take emergency leave as a result of childcare arrangements, school closures do not generally fall within this category.  Emergency leave is available when there is an “unexpected disruption to childcare” and, unless there are specific applicable circumstances, this does not expressly include a school closure.  Having said that, employers should try and be as flexible as possible with employees who are unable to attend work due to school closures.  Employers might want to encourage employees to work from home on such occasions.  Alternatively employers might want to permit employees to make up the time at a later date.  It would however be important for an employer to adopt a consistent approach when dealing with such situations.

Ultimately the handling of bad weather procedures is an opportunity for employers to enhance staff morale and productivity in the workplace by considering solutions to the climatic conditions.  Experience demonstrates that employers who deal with these issues in a fair manner have a happier, healthier workforce.

In the meantime, I intend to look out my snow shoes and walking poles in the event that I require to walk across the Tay Bridge at some point this week!

Simon Allison
Partner – Employment Law

TUPE – What’s New?

New TUPE Regulations come into force on 31 January 2014.  These are the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 and have been brought in to supplement the 2006 Regulations.

The important changes to look out for are:

  • Where post-transfer redundancies are anticipated, pre-transfer consultation by the transferee with employees will be allowed to count towards the mandatory 30/45 day collective consultation periods under the Trade Union and Labour Relations (Consolidation) Act 1992, but the transferor’s agreement is required.
  • For there to be a service provision change between outgoing and incoming contractors, the transferring activities must be “fundamentally the same”.  This will bring the scope of the service change provisions more closely into line with traditional transfers.
  • Employees will no longer be able to bring unfair dismissal claims simply because of a move to a new location – the change in location will be considered an economic, technical or organisational reason so potentially justifiable.
  • The time frame for providing employee liability information goes up from 14 to 28 days pre-transfer (applies to transfers from 1 May 2014).
  • Small businesses with less than 10 employees will have the option to consult with affected employee individually rather than collectively (applies to transfers from 31 July 2014).

Most of the changes being brought in by the Regulations are employer-friendly.  If you would like to discuss any of these changes, please contact any member of the Blackadders employment law team.

Sarah Winter
Senior Solicitor – Business Services

Rangers’ Dangers: Are the Players Standing Firm?

Recent reports suggest that the Rangers squad have been asked to take a 15% pay cut as a result of the £14.3 million losses which were announced by the Club last year.  Yesterday afternoon, Rangers’ first-team apparently rejected this pay-cut proposal. 

As an employment lawyer, this begs the question as to what employers can do in situations where they need to drastically reduce their cost base and limit any continuing liabilities. 

In these circumstances, an employer has three clear options:

Agree a pay cut with its employees

A contract of employment is an agreement between both employee and employer.  This contract can only be changed with the agreement of both parties.  If an employer wishes to reduce an employee’s salary, it requires to obtain that employee’s consent before doing so.  If an employer were to unilaterally (without the employee’s agreement) change a material term of an employee’s contract, that employee could be entitled to treat himself as constructively dismissed and receive compensation for his losses from an employment tribunal.  For this reason, an employer would require to agree any proposed variation to the contract with the employee if it wanted to avoid such a claim. 

Dismiss and re-engage employees on different terms and conditions

An alternative would be for an employer to give notice to its employees that their existing terms and conditions were to be terminated and, after this notice period had expired, the employees could be re-engaged on different terms and conditions.  This “dismissal and re-engagement” procedure could still be challenged by an affected employee although it would be claim of unfair dismissal.  An employer could successfully resist such a claim if it could demonstrate that it had good business reasons for the dismissal and re-engagement.  Such business reasons could include the survival of the business, a much-needed increase in its efficiency or an essential reduction in costs.  A tribunal could also take into account whether or not the employee acted reasonably in rejecting the proposed change when deciding if the dismissal was fair.  If employers are seeking to conduct this type of exercise, they should be taking legal advice about it before commencing the procedure.   

Conduct a redundancy exercise to reduce ongoing liabilities

The statutory definition of redundancy includes the situation where the requirements for employees to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish.  This would include the scenario where an employer is suffering losses and requires to re-organise the business in order to allow it to survive.  Before carrying out such redundancies, the employer will require to consult with the affected employees. Depending on the number of proposed redundancies, the consultation requirements might include having to elect employee representatives as well as providing basic information about the proposed redundancies to affected employees.  Ultimately the employer will require to meaningfully consult with the employees before taking the decision to dismiss.  Redundant employees will also be entitled to receive a statutory redundancy payment, where applicable. 

As far as the “Teddy Bears” problems go, it certainly does not sound as though they are having a picnic in the Ibrox Board Room.  The next few weeks might include a series of financial keepie-ups for the club until one of the above options is agreed.

I would expect that Rangers fans will want the situation resolved as soon as possible so as to avoid a repeat of the events which occurred in 2012. 

Clearly Rangers will require to carefully consider all of their options before taking any decisive action.

Simon Allison
Partner – Employment Law

Why I Like Employee Grievances

Most employers and HR professionals will groan when faced with the prospect of dealing with an employee grievance.  This is completely understandable and it is always disappointing when an employer is unable to resolve matters informally with its employees.  However as an employer, I am of the view that, in certain circumstances, employee grievances should be welcomed.

A formal grievance allows the employer to assess the validity of the complaint
There may be situations where an employer does not recognise that its practices are potentially unfair.  By encouraging employees to use the formal grievance procedure, it allows for any unfair practices to be identified, addressed and hopefully resolved.  By the same token, if an employer’s practices are justified and proportionate, in determining a grievance the employer’s position can be formally explained to the disgruntled employee.

A formal grievance creates a useful paper trail
Employers and HR professionals will know the value of a coherent paper trail.  It is best practice for every significant conversation with an employee to be recorded in that employee’s personnel file.  Minutes of formal meetings are extremely useful if an employer’s actions are scrutinised at a later date by an employment tribunal.  However, occasionally, the content of any correspondence from the employee will be a more useful tool in assessing credibility, particularly in cases of constructive dismissal where the employee has resigned from employment.  In these circumstances, an employee’s formal written grievance can be more useful evidence to a tribunal than the minutes of a meeting which have been solely prepared by the employer.

A formal grievance system will filter out nonsense groans
Employers are frequently faced with employee issues which are relatively minor and unresolvable.  If an employer has sought to informally resolve an issue with an employee but the employee still remains unhappy, the employee should be invited to lodge a formal grievance.  In such situations, the employer will be able to test the employee’s resolve and frequently the employee will elect not to pursue the issue formally.  By encouraging use of the formal grievance procedure, this course of action should assist employers in filtering out the time-wasting, nonsense groans.

Ultimately I believe that an effectively-run grievance procedure should be an asset to any employer.  If an employer can efficiently consider and determine grievances, both informally and formally, this process should allow for the continued successful management of your staff.

Simon Allison
Partner – Employment Law

Get Fit For ’14

Is your business fit for 2014?  If not, now is the time to consider implementing a fitness plan which should ensure that your business stays healthy and up-to-date throughout 2014 and beyond.

The starting point for any such fitness regime should be your employment contracts.  Generally employers should review their employment contracts every two years or so.  If you have not refreshed your existing contracts for some time, you should consider doing so this month.

What is the existing position regarding employment contracts? 

The law requires employers to issue its employees with a compliant statement of terms and conditions within two months of the commencement of employment.  This statement of terms and conditions (or employment contract) requires to be in a written form and requires to contain certain basic information.  This basic information includes hours of work, rate of pay, notice, holiday and pension provisions.

What are the sanctions for non-compliance?

It is not uncommon for an employer to either fail to issue the contracts within the two month period or fail to include all of the specific criteria in their contracts.  An employer who fails in either of these respects could be liable to pay compensation of two or four weeks’ wages to each employee.

Do the contracts need to be signed by employees?

The legislation states that an employer merely requires to “issue” its employees with a compliant contract.  This means that, strictly speaking, an employer does not require to get its employment contracts individually signed by its employees.  However it is always best practice to get your contracts signed by your employees so as to avoid any dispute in the future as to their issue.  Additionally, if your contracts allow for you to deduct monies directly from an employee’s wages, you will require to obtain your employee’s written consent for such lawful deductions.  A signed employment contract can also serve this purpose.

What happens if any of the terms of the contract change during employment? 

This is another common pitfall for employers.  The law states that, if there is any change to the basic information contained in the employment contract, the employer requires to provide the employee with written confirmation of this change within one month of the change taking effect.  Again a failure to either confirm the variation in writing or to do this within one month of the date of variation can result in a fine of two or four weeks’ wages.

The good news for employers is that they do not require to go anywhere near a treadmill to ensure that their business remains healthy during 2014.  Instead employers should carefully consider the content of their contracts.  In addition to the essential information, employers might wish to take legal advice about including restrictive covenants, clauses regarding repayment of training costs and bonus structures in their contracts.

Ultimately employers can retain good health by ensuring that their employment contracts act as a versatile tool for managing their employees throughout the year and maintaining their business in peak, fighting-fit condition.

If you wish to obtain a quote for drafting or reviewing your contracts, you can make contact with me or one of my colleagues in the employment team.

Simon Allison
Partner – Employment Law