Step 3: How to Prepare For A Disciplinary Meeting | Employment Lawyer in Your Pocket

Episode 3: Simon and Andy discuss how to prepare for a disciplinary meeting, addressing who should chair the meeting, the timescales recommended for such a meeting and the content of the letter inviting the employee in the meeting.

Oh, and it also happens to be National Cake Day…

You can click here to access the previous episode of this podcast series “Step 2: How to Conduct an Investigation at Work”. 

We would be delighted if you could provide us with any feedback in the comments box below.

Follow the Employment Law team on Twitter: @EmpLawyerSimon, @EmpLawyerJack and @EmpLawyerAndy

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Step 2: How to Conduct an Investigation at Work | Employment Lawyer in Your Pocket

Employment Lawyer in Your Pocket is a podcast delivered by Blackadders award winning Employment Law team which will provide practical employment law advice to HR managers and business owners. In their first series, the team will discuss the steps which a manager must take when looking to conduct a fair dismissal.

Episode 2: Simon and Jack discuss how to conduct an investigation meeting at work.  What steps should you take before conducting an investigation meeting? Who should conduct the investigation meeting?  When it is appropriate to suspend an employee?

You can click here to access the previous episode of this podcast series “Step 1: Where Do I Start When Managing Employees?”

We would be delighted if you could provide us with any feedback in the comments box below.

Follow the Employment Law team on Twitter: @EmpLawyerSimon, @EmpLawyerJack and @EmpLawyerAndy

#ELIYP

5 Reasons Why Obi Wan Kenobi Was a Terrible Mentor

 

obi-wan-kenobi-and-Anakin-skywalker-obi-wan-kenobi-and-anakin-skywalker-17321983-376-304
Anakin Skywalker was mentored by the Jedi Master Obi Wan Kenobi. But did he do a good job?

We all know the story. Jedi Master (Obi Wan) agrees to mentor Padawan apprentice (Anakin Skywalker) whilst training him to be a Jedi Knight. Mentee is seduced by the Dark Side. Mentee decides that he wants to rule the Galaxy. Mentee takes on mentor in winner-takes-all light sabre battle. Mentor emerges the victor, leaving his mentee to die. (Mentee later decides that he still wants to rule galaxy but that’s a whole different set of films)

Most blame Supreme Chancellor Palpatine for Anakin’s lure to the Dark Side. Others blame Padme. Personally, I blame Obi Wan. He was a truly terrible mentor. And here are my five reasons why.

  • Lack of integrity: Throughout his training, Obi Wan labours the merits and integrity of the Jedi to his eager mentee. Jedis never give in to feelings of anger. Jedis never give in to feelings of fear. Jedis never tell lies … blah, blah, blah. However during the course of this mentorship, Obi Wan instructs his mentee to spy on the Supreme Chancellor on behalf of the Jedi Council. Did this instruction demonstrate integrity? Not in my view. A mentor should demonstrate integrity at all times to a mentee and, as a mentor, Obi Wan failed in this respect.
  • Lack of challenge: The role of mentor involves a degree of objective scrutiny. A mentor should be able to constructively challenge his mentee about any issues which are discussed between them. Obi Wan fails on each occasion to do this. But let’s face it – this is not a surprise. Obi Wan’s inability to process information about anyone other than himself should have been obvious to all of us, given his complete failure to recognise that the Supreme Chancellor was in fact the Sith Lord! It couldn’t have been more obvious, had it been tattooed on his face. A mentor requires to listen, guide and, where appropriate, criticise constructively. Help me, Obi Wan Kenobi. I am losing hope in your abilities as a mentor.
Luke-and-Ben-ben-kenobi-and-luke-skywalker-27817047-1280-853
Obi Wan got a second chance at proving his mentoring skills with Luke Skywalker.
  • Dishonesty: Acting as a mentor involves complete honesty, with the occasional degree of diplomacy. However even when Obi Wan gets a second chance at mentoring Luke Skywalker, he fails to disclose various essential truths to him. Yes, he tells Luke how evil Vader was. Yes, he tells Luke that Vader “betrayed and murdered” his father. However he fails to get round to telling Luke that Vader is his actual father! There should be 100% trust and honesty between a mentor and mentee and again, Obi Wan falls down in this respect.
  • Hypocritical: A mentor requires to be admirable and accessible. In my view, Obi Wan completely lacks these qualities and, at times, verges on being hypocritical and remote. Do we remember him telling Anakin that, at the age of nine, he was too old to begin Jedi training? Why then does Obi Wan wait for nineteen years before commencing Luke’s training? What a hypocrite. And what was he playing at living like a hermit in these caves whilst Luke was growing up. As a mentor, the door should always have been open to the mentee. Game over, Obi Wan. Game over.
  • Uninspiring: Let’s face it. Obi Wan is uninspiring. His style of mentoring involves lecturing and patronising his mentee. Moulding does not mean scolding. Instead of lecturing him on his arrogance or recording the frequent incidents of insubordination in his calendar, he should have perhaps spent some quality time with him. A mentor and mentee should aim to do fun things together, as well as the more serious side of the mentoring. You should have shared a Jawa Juice with him, Obi Wan. Or at least taken him to an ice hockey match.

As an employer, if you encourage a mentoring programme in the workplace, you should ensure that this mentoring scheme is worthwhile. All too often, an employer will set up a mentoring arrangement and then fail to give too much attention to the benefits (or not) of it. Such a scheme should be of benefit to both the mentee and the employer. In the words of Yoda, “Do. Or do not. There is no try.”

So if you are involved in a mentor scheme, either as a mentor or a mentee, you would be wise to remember what happened a long, long time ago, in a galaxy far, far away, with particular reference to Obi Wan’s failings as a mentor. In fact, forget about Obi Wan, Anakin and Skywalker. And look instead at Chewbacca. He turned out OK. As a mentor, why not style yourself on Han Solo instead? (Or, if you’ve seen the newest film, Han YOLO)

Good luck. And may the Force be with you.

Simon Allison
Partner – Head of Employment Law
@EmpLawyerSimon
www.blackadders.co.uk

 

 

 

Tips for Tipping: An Employment Lawyer’s Guide to Eating Out

I always tip.  Even if the service is rubbish and the food is horrible, I still feel strangely compelled to leave a tip.  In fact, even when I have specifically said “no” to mushrooms and then find mushrooms on my plate, I will still always calculate my 15%.  I suspect that this is a throwback to the many years I spent waiting tables as a student.

However the world of tipping also has some interesting employment law aspects.

Can an employer use tips to satisfy their national minimum wage obligations?

No.  The National Minimum Wage Regulations create obligations on employers to pay workers a basic hourly rate.  Prior to 2015, an employer could include tips and service charges which were “paid by the employer” through its payroll to count towards a worker’s wage.  However since the regulations were amended, such tips cannot count towards the employer’s national minimum wage obligations.

Should tips be taxed and, if so, who is liable for this?

Yes.  Tips should fall subject to tax and national insurance contributions.  Ordinarily the employer would fall liable for these.  Generally most restaurants are following the HMRC guidelines – tips are collected by the employer and then put through payroll.  However, if customers give cash tips directly to waiting staff who keep them without any involvement from the employer, the responsibility for tax on these payments will fall to these employees (although in such specific circumstances employees may be able to avoid having to pay national insurance contributions on these sums).

Can I choose to ignore a compulsory service charge?

No.  If the charge is clearly labelled as compulsory, it will be very difficult to avoid.  In such situations, the compulsory service charge is not a tip and therefore if the employer chooses to share this charge with its employees, this payment should be treated by the employer in the same way as wages (i.e. subject to tax and national insurance deductions).

Can I ensure that any tip which I leave is given to the person who served me?

No.  The only way to ensure that the person who served you gets the tip is to give it to them directly.  And even if you do this, that person may still be subject to internal procedures regarding the pooling of tips and may still have to declare your tip to the employer.

What is the impact of failing to deal with these issues correctly?

Workers who do not comply with these issues risk not only being prosecuted for tax avoidance but also potentially finding that they cannot rely on the terms of their contract in an employment tribunal.  If a contract is illegal or tainted with illegality, it cannot be relied upon.  Tribunals are frequently refusing to hear claims where parties have not complied with employment legislation.

So whilst all restauranteurs seek to have limitless reservations, they should ensure that they have no reservations about their treatment and taxation of tips.  Take professional advice about these issues now.  Otherwise you may find yourself in a pickle in future, having to mustard the strength to ketchup with your competitors and existing legislation.

Simon Allison
Partner – Head of Employment Law
@EmpLawyerSimon
www.blackadders.co.uk

Zero Hours Contracts

Zero hours contracts emerged as a hot topic during this year’s General Election and the new Government has already started making changes in this area of employment law.

Primarily used for casual workers, the general understanding of a zero hours contract is that an employer does not have to provide minimum working hours to the worker, whilst many contracts also expect workers to be available to work when it is offered.

For years zero hours contracts have allowed for a flexible workforce, traditionally for seasonal work or to cover short term staff shortages.  That said, there is now concern that zero hours contracts are being used in areas where they are not suitable, because they put workers at risk of missing out on benefits such as paid holidays and sick pay.

The Government has started to clamp down on zero hours contracts.  Since the end of May 2015, exclusivity clauses in zero hours contracts, which prevent an individual from working for another employer even if their contracting employer cannot offer them work, have been unenforceable under the Small Business, Enterprise and Employment Act 2015.

In addition, although the secondary legislation is not yet in place, the Act also allows the Government to introduce a protection from detriment for zero hours contract workers who take jobs under other contracts, and a guaranteed minimum pay level, below which exclusivity clauses will be unenforceable generally.

We will see if the Government goes these steps further.  In the meantime, employers who use zero hours contracts should review their contracts noting that any exclusivity clauses in them will no longer be enforceable.

Sarah Winter
Senior Solicitor – Employment Law 
www.blackadders.co.uk

How Are You Voting Today? Zayn or Louis?

Louis Zayn
#TeamLouis or #TeamZayn?

Whilst most eyes will be on the General Election today, some may also be on the twitter spat which has broken out between One Direction band member, Louis Tomlinson, and his former band mate, Zayn Malik.  A very public war of online words has commenced on twitter between the two ex-band mates.  Opinion is very clearly divided as to which musician is in the wrong.

Social media feuds between employees

As an employment lawyer, I am being asked more and more frequently to give advice to employers as to when (and how) to intervene when such social media issues occur between employees.  Employment lawyers are now having to grapple with issues such as “cyber bullying” and “online social exclusion” on a sometimes weekly basis.

Is the conduct within the course of employment? 

Before making a decision about whether to intervene in such online spats between employees, an employer should consider whether or not the conduct falls “within the course of employment”.  Historically employment tribunals have interpreted this definition very widely and frequently in favour of the employee.  However tribunals are also keen to emphasise that each case will be fact specific.  Generally an employer will only be liable for acts of its employees which are authorised by it.  Therefore if an employer makes clear to employees what use of social media is prohibited, this would be a potentially good defence to any claim on the basis that such conduct took place between employees outwith the course of employment.  On this basis, employers should have a clear social media policy in place and provide regular training to its employees as to unacceptable use of such social media.

What steps should be taken by the employer if social media misconduct falls within the course of employment? 

  • Where possible, employers should encourage employees to make use of the formal grievance procedure. This will allow the employer to create and maintain a paper trail as to the extent of the alleged misconduct.  This should also allow the employer to note the effect of the misconduct on the disgruntled employee.  This information might also prove useful at any future tribunal hearing.
  • Employers should ensure that any bullying and disciplinary policies extend to include the use of social media. This might include the use of offensive or intimidating language directed at another employee on social media.
  • Lastly employers should also take action against employees who commit acts of misconduct on social media. In order to do so, the employer will require to rely upon a robust social media policy.

Ultimately whether you are #TeamLouis or #TeamZayn, it seems clear that this recent episode of #KeyboardCourage looks set to prolong the #ZaynPain for another few weeks …

Simon Allison
Partner & Head of Employment Law
@EmpLawyerSimon
www.blackadders.co.uk

Forwarding pornographic emails at work Leeds to loss of 12 months’ notice

A former Director of Leeds United Football Club has failed in an action for wrongful dismissal (Williams v Leeds United Football Club).  Mr Williams’ contract provided for a salary of £200,000 per annum and a 12 month notice period.  He was given notice of redundancy.  However, one week into the notice period he was summarily dismissed for gross misconduct.  The employer had instructed forensic investigators to review their email system with a view to finding a basis for a gross misconduct dismissal.  This was done with the intention of avoiding the substantial notice payment.

The investigation uncovered an email which Mr Williams had sent more than 5 years earlier.  The email contained pornographic material which he had forwarded to two former colleagues and also to a junior female colleague.  Leeds commenced a disciplinary procedure and Mr Williams was dismissed in his absence when he failed to attend the disciplinary hearing.  Leeds refused to pay the £200k notice pay.

The High Court in London dismissed his notice pay claim.  Leeds were entitled to dismiss Mr Williams without notice in the circumstances.  The senior nature of his position, combined with the fact that the lewd nature of the images could have amounted to harassment of a female colleague, resulted in a breach of trust and confidence.    His conduct amounted to a repudiatory breach of contract.  The Court was not moved by the employee’s argument that the delay of over 5 years meant that he had not breached trust and confidence – Leeds acted when they became aware of the breach.  Also irrelevant was the fact that the employer was actively seeking material to justify dismissal and avoid paying notice.

Jack Boyle
Senior Solicitor – Employment Law
@EmpLawyerJack
www.blackadders.co.uk       

Changes to statutory redundancy pay and others from 6 April 2015

From 6 April 2015, the annual increase in compensation limits will apply.

Compensatory award at tribunal

An employee who successfully demonstrates that he or she has been unfairly dismissed is entitled to claim a compensatory award.  From 6 April 2015, the maximum compensatory award at tribunal will increase to 52 weeks’ pay or £78,335 (previously £76,574), whichever is lower.

A week’s pay

The maximum for a week’s pay will increase to £475 (previously £464) from 6 April 2015.

Why does it matter to employers?

Whilst I would hope that, even if you are faced with a tribunal, any potential award would be substantially lower than the statutory cap, it is important to note the increase in a week’s pay for redundancy payment calculations.  Redundancy pay is based on age, length of service and weekly pay, capped at the appropriate rate.

The Government has a helpful online calculator which can also be used, where appropriate.

https://www.gov.uk/calculate-your-redundancy-pay

You should be taking steps now to ensure that the appropriate person is aware of the proposed changes to these statutory caps.

Andrew Wallace
Trainee Solicitor – Employment Law
@EmpLawyerAndy
www.blackadders.co.uk

Establishing the meaning of ‘establishment’ in redundancies

Collective Redundancies

There are currently three cases to be heard by the Court of Justice of the European Union (“CJEU”) on the issue of what constitutes an ‘establishment’ for the purposes of collective redundancies. UK law currently provides that when 20 or more employees are to be made redundant within a period of 90 days at one establishment, they must be consulted collectively beforehand. Consulting collectively is generally more burdensome and onerous than consulting individually. It requires the employer to consult with the employees, or any representatives at the same time. The process must begin 30 days before the intended redundancies are planned to take place (45 days if there are more than 99 staff being made redundant). The Secretary of State for Business, Innovation and Skills also needs to be notified as part of the consultation. The process takes longer and employees can make claims for protective awards of up to 90 days’ pay if the employer fails to collectively consult.

Question of establishment

There has been much discussion recently as to what exactly constitutes an ‘establishment’. Does an establishment refer to each individual place of work? Or does the European interpretation of establishment enforce consideration of all redundancies across a company within a 90 day period (ie all redundancies across all of the offices/units of work). Clearly the distinction has a great impact procedurally and financially on employers.

Advocate General’s opinion

The Advocate General has given his opinion on the matter. He has opined that, “the ‘establishment’ is the unit to which the redundant employees are assigned to carry out their duties and it is not necessary to aggregate the dismissals across all of an employer’s establishments”. This would imply that an employer need only consider collective consultation when there are 20 or more redundancies made at the same unit of work – a relief for employers.

It is important to note that the Advocate General’s opinion is often used as a recommendation to the CJEU and is in fact often implemented by the court. However until the CJEU delivers its judgment, the opinion is not legally binding. At this stage it is a good indicator on which way the court is likely to lean.

Advice

When employers are being forced to look at multiple redundancies, always bear in mind the potential requirement to collectively consult with the employees (as opposed to individual consultation). Carrying out the correct procedure will prevent unwanted claims. For now it would appear that the interpretation of an establishment is in favour of one particular unit of work. This would be favourable for the employer. However it is still not guaranteed to be implemented by the CJEU. Keep an eye out for its awaited judgment – this will provide final clarity on the matter.

Andrew Wallace
Trainee Solicitor – Employment Law
@EmpLawyerAndy
www.blackadders.co.uk

Fit for Work Service

The new Fit for Work Service was launched in Lanarkshire, Tayside and Lothian on 26 January 2015. The service is aimed to make it easier for employees to return to work after periods of extended absence. It is expected that other health board areas will be joining the service shortly.

The System

Referral

The system aims to provide a quick and free passage back into employment for an absent employee. Any employee in paid employment who has been absent for 4 weeks or more will be eligible for the service. After an employee has been absent for 4 weeks they can be referred to the scheme by their GP. If the GP does not refer the employee, this can be done by the employer. Any referral will need the explicit consent of the employee.

Assessment

Once a referral has been made, a professionally qualified clinician will contact the employee. Consultation will normally be carried out by telephone. The employee will receive a phonecall within 2 working days. If the employee would prefer a face to face consultation, this will usually be done within 5 working days.

Back to Work Plan

The assessment will look at any barriers that may prevent the employee from returning to work and come up with a plan to counteract them. Employers will not have to implement any plans suggested to them by the assigned clinician, however the employer may be eligible for a tax free exemption of £500 if adjustments to the workplace or duties are required.

Access to Work

It is important to note that the current Access to Work scheme will continue to function. This is a scheme which offers grants to help employees with a disability, mental health or health issues begin or stay in work. Access to Work grants may be more appropriate for an employee who requires further adjustments.

For more information on the Fit for Work Service please visit www.fitforworkscotland.scot

Andrew Wallace
Trainee Solicitor – Employment Law
@EmpLawyerAndy
www.blackadders.co.uk