Astons Solicitors

The recently published draft Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment of Schedule A2) Order 2024 marks a significant change by amending Schedule A2 to the Trade Union and Labour Relations (Consolidation) Act 1992. Set to be enacted on 18th July 2024, this order brings forth notable adjustments.

Under the new order, if affected employees or their representatives file a claim for a protective award and a relevant code of practice is applicable, compensation may see an increase of up to 25% if the employer is found to have unreasonably failed to adhere to the code. Conversely, in instances where employees themselves have not complied with a relevant code, compensation can be decreased by up to 25%.

Written by
Astons Solicitors
15th May 2024

Employees can now seek compensation for past underpayments of holiday pay even if there are intervals of over three months between the underpayments (i.e. deductions).

This was the decision of the Supreme Court in the case of Chief Constable of Police Service of Northern Ireland v Agnew.

The claimants, comprising of over 3,000 police officers and civilian staff in Northern Ireland, argued for compensation due to only receiving ‘basic pay’ instead of ‘normal pay’, which encompasses basic pay, overtime, and various allowances. Although both sides agreed there was an underpayment including compulsory overtime the Supreme Court was tasked with determining how far back the claimants could make their claim.

The relevant Northern Irish legislation, reflecting the Employment Rights Act 1996, specifies that claims can only address payments from the three months preceding the claim’s submission. However, if the deductions form a series, they can be combined if the claim is filed within three months of the final deduction in the series.

In Bear Scotland v Fulton, the EAT had earlier determined that deductions could be connected in a series only if the interval between each deduction was three months or shorter. This clearly limited the period for which Claimants could retrospectively claim holiday pay.

In the latest Supreme Court decision, the Court determined that whilst claims for holiday pay still need to made within three months of the last deduction a claim can be made for a series of deduction even where the intervals between the deductions are more than three months.

The Court highlighted that using a fixed 12 week period to compute holiday pay was not correct and instead, the period should be specific to each individual, reflecting their specific work routine. The Court recommended a more practical approach where “normal pay” calculations are based on averages from the preceding 12 months before leave.

It is important to note that the repercussions of this ruling are lessened for employers since claims for unauthorised wage deductions under the Employment Rights Act 1996 are restricted to deductions over the previous two years only.

Written by
Astons Solicitors
05.10.2023

 

The government has released a new version of its Guidance on Fit Notes for Employers and Line Managers.

In addition to the main guidance, which is quite detailed, there’s a handy checklist for employers and a set of case studies.

It’s comprehensive and worth a look.

Written by
Astons Solicitors
10.10.2023

Hints and Tips on Handling a Flexible Working Request

How to handle a flexible working request is a common HR query.

Here’s a summary of a “good practice” process which ensures the Employer follows good legal practice and promotes a supportive working environment. It also complies with the minimum requirements under the statutory flexible working scheme.

Eligibility:

Not all employees are eligible to make a formal flexible working request. To qualify, an employee must have worked for the same employer for at least 26 weeks.

Limit on Requests:

Employees can only make one formal request in any 12-month period.

Acknowledge Receipt:

Once a written request is received, promptly acknowledge it. This shows professionalism and demonstrates to the employee that their request is being taken seriously.

Meet with the Employee:

It’s good practice to arrange a meeting to discuss the request. This gives both parties the chance to explore the proposal, discuss potential problems, and consider possible solutions.

Consider the Request Fairly:

You should consider the request in a ‘reasonable manner’. This means assessing the advantages and disadvantages, looking into whether the changes might be accommodated, and discussing any adverse business impact with the employee.

Grounds for Refusal:

UK Employment Law specifies several grounds on which an employer can refuse a flexible working request. These include:

• The burden of additional costs.
• Detrimental effect on ability to meet customer demand.
• Inability to reorganize work among existing staff.
• Inability to recruit additional staff.
• Detrimental impact on quality.
• Detrimental impact on performance.
• Insufficiency of work during the periods the employee proposes to work.
• Planned structural changes to the business.
• Responding to the Request:

You must respond to the request within three months (or longer if agreed with the employee).

The response should either:

• Approve the request and specify the agreed changes and their start date.
• Refuse the request, providing one or more of the grounds for refusal listed above. It’s good practice to also provide an explanation for the decision.

Appeals:

Although there’s no statutory right to an appeal, offering one is considered good practice. An appeal provides an opportunity to revisit the decision and correct any potential oversights or misunderstandings.

Trial Period:

Consider offering a trial period for the new working pattern. This can help both the employer and the employee assess whether the flexible working arrangement is sustainable.

Keep Records:

t’s important to keep a written record of all flexible working requests, including meetings, decisions, and any appeals. This can help protect the business in case of any disputes.

Review and Adapt:

Even once a flexible working request has been implemented, it’s beneficial to review the arrangement periodically to ensure that it’s still meeting both the business and the employee’s needs.

Written by
Astons Solicitors
22.09.2023

 

https://www.astonssolicitors.co.uk/8857-2/8857/

What are the benefits of offering an employee a settlement agreement as a way of bringing an end to their employment contract? A settlement agreement (previously known as a compromise agreement) is a legally binding document where an employee agrees not to pursue a claim or claims against their employer, typically in exchange for a sum of money or other benefits. There are several reasons why an employer might consider offering a settlement agreement to exit an employee from the business: Mitigation of Risk: The main reason to offer a settlement agreement is to avoid the risk of potential tribunal claims. Employment tribunal claims can be costly, time-consuming, and unpredictable. By offering a settlement, an employer can mitigate the risk of a claim being brought against them. Cost Effective: Even if an employer believes they would win in an employment tribunal, the legal costs and the time taken out from the business to deal with the claim can outweigh the costs of a settlement agreement. Confidentiality: A settlement agreement can include clauses that maintain the confidentiality of the settlement sum, the circumstances leading to the agreement, and any other sensitive business information that might be at stake. Reputation: Employment tribunals can sometimes attract unwanted media attention, especially if the details are controversial or if the company is well-known. By settling before any potential claim, the employer might avoid bad publicity. Control: By negotiating a settlement agreement, the employer has more control over the terms than they would if the case went to an employment tribunal, which can result in unpredictable outcomes. Certainty and Finality: Once a settlement agreement is signed, and the employee receives the agreed sum or benefit, they can’t bring a claim on the matters specified in the agreement. This gives the employer peace of mind and finality. Relationship Preservation: If both parties wish to part on amicable terms or there’s a possibility the individual might return to the company in the future, a settlement agreement can be a less adversarial means of resolving disputes. Flexibility: A settlement agreement can be tailored to fit the specific needs of the situation. This might include references, outplacement support, or other non-monetary benefits that might be helpful to the departing employee. However, for a settlement agreement to be legally binding, certain conditions must be met: The agreement must be in writing. It must relate to a specific complaint or complaints. The employee must receive legal advice from a relevant independent adviser on the terms and effect of the proposed agreement. The independent adviser must have a current contract of insurance or professional indemnity insurance covering the risk of a claim by the employee in respect of loss arising from the advice. The agreement must identify the adviser. The agreement must state that the conditions regulating settlement agreements under the relevant laws are satisfied. If you’re considering offering a settlement agreement or need advice tailored to a specific situation, please give us a call at Astons Solicitors. Written by Astons Solicitors 25.09.2023

Yes – It is always good practice to ensure risk assessments are carried with pregnant employees and listed below are some of the main reasons why.

• Statutory Obligation: Under the Management of Health and Safety at Work Regulations 1999, employers are obligated to assess the workplace risks posed to new or expectant mothers. Failing to carry out this risk assessment can lead to legal repercussions.
• Health & Safety of the Employee: Pregnancy can make an employee more susceptible to certain risks. Assessing these ensures that the workplace is safe for them, protecting their health and that of the unborn child.
• Prevent Discrimination: Under the Equality Act 2010, pregnancy and maternity are protected characteristics. Not conducting a risk assessment could be seen as less favourable treatment, opening up the possibility of a discrimination claim.
• Avoidance of Unfavourable Treatment: Once you’re aware of any risks, you can take steps to eliminate or reduce them, avoiding any accusations of unfavourable treatment due to pregnancy.
• Financial Implications: Failure to carry out risk assessments or address identified risks can lead to injury or illness, potential claims for compensation, and increased sick leave.
• Retention & Morale: Demonstrating that you care about the well-being of your staff can improve employee retention, morale, and overall workplace culture.
• Minimising Absenteeism: By addressing risks early, you reduce the likelihood of pregnancy-related health issues that could lead to increased absence.
• Flexible Working Consideration: The risk assessment might also help you identify if any adjustments or flexible working arrangements are necessary, helping the employee balance work and health.

If you require any support carrying our such assessments please do not hesitate to contact us at Astons Solicitors on 01604 700099 or contact me directly eia@astonssolicitors.co.uk

Written by
Astons Solicitors
14.09.2023