Information for Employers

Working time

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Under section 45A of the Employment Rights Act 1996, workers have the right not to be treated badly by their employer for refusing to work in breach of the Working Time Regulations 1998 (WTR). If such a refusal is the reason (or main reason) for an employee’s dismissal, their dismissal will be automatically unfair. The case of Paxur v Lexington Catering Services examines how explicit that refusal needs to be.

The employee was a kitchen porter. He had previously been assigned to a client, Lexington, who did not allow him to take his 20-minute rest break. When asked to return to Lexington for work, the employee refused. He was threatened with the sack, and then sacked, for refusing to go. He brought a detriment claim and a claim for automatic unfair dismissal.

The employment tribunal said that the requirement to return to Lexington was a requirement to work in a way which breached the WTR (because of the refusal to allow a rest break). However, the tribunal said that the employee had not provided enough evidence to show that his refusal related to the WTR issue, rather than just a general dislike of the chef at Lexington. The EAT agreed that an explicit WTR-related refusal was required. However, in this case the tribunal had overlooked evidence that the refusal was related to the WTR issue. The EAT upheld the detriment claim and sent the unfair dismissal claim back to the same tribunal panel to decide whether the dismissal was related to the refusal to work without rest breaks.

This case highlights the importance of dealing with complaints about breaches of the law carefully. Employers should also ensure that all workers get adequate rest, wherever they work.

Astons Solicitors
November 2019

Mental Health at Work

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ACAS have recently published new guidance on mental health in the workplace. The guidance covers promoting positive mental health, managing staff experiencing mental ill health, dealing with stress and managing anxiety in the workplace. ACAS are also offering training for employers.

Since this guidance, a new independent review, conducted by Stevenson/Farmer, looking into ways in which employers can improve the support they give to the mental health of their employees, including those with mental health problems or poor well-being, has been published.

There are 40 recommendations included in the review, Thriving at Work, which covers a wide range of helpful information for employers including

  • All employers should adopt the mental health core standards set out in the report. These include producing a mental health at work plan, encouraging open conversations about mental health, providing employees with good working conditions and routinely monitoring employee mental health and wellbeing.
  • Public and Private Sector Employers with over 500 employees should deliver mental health advanced standards including the provision of tailored in-house mental health support and signposting to clinical health
  • The Department of Education should consider how teacher mental health can be incorporated into school mental health strategies.
  • Industry groups should provide guidance and support to enable employers to implement the mental health core standards and take steps to support increased employer transparency and accountability on work place mental health

The review lays out recommendations for both public and private sector employers and also for the government.

Written by

Edward Aston
15th November 2017

10 Top tips for dealing with underperforming staff

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Having a fantastic team that works together for a common goal and shares your vision is definitely the key to a successful business. It’s also pretty difficult to achieve. One weak link in the team can cause everything to fall apart so it’s important to sort out issues as and when they arise. Even the strongest most experienced managers can shy away from dealing with underperforming team members, hoping that they will just improve on their own. However, burying your head in the sand is never advisable in this situation, it’s always better to face the problem head on and deal with it – this will always work out better for all parties in the long run. Here are our 10 top tips for dealing with underperforming staff:-

  1. Assess their long term performance

Has the team member always been underperforming or is this a more recent situation? There’s a big difference between an employee that consistently delivers poor results and one that is just going through a bad patch. Look at reports and compare performance results and see if you can pin point when the performance changed…this might give you a clue as to why they are struggling and how you might be able to help.

  1. Listen and communicate

Meet with the employee to discuss your concerns but listen first to their explanation and understand their issues. Most employees will be very aware of their shortcomings and more conscientious ones may have been worrying about it for a while. Tackled in the right way these staff will be open to help and guidance in how to improve and move forward.

  1. Give specifics

Simply telling your staff member to ‘do better’ or ‘pick up the pace’ can be infuriating and confusing for them when they are struggling to keep up with their colleagues. As a manager it is important to give examples and specific ways in which they can improve. Quick wins will always be well received and can help motivate an employee to start finding their own other ways in which they can improve their performance.

  1. Create performance goals together

SMART goals are the best way to keep someone on track but it’s important to create these goals together and get agreement from the staff member. Creating goals for improving performance without their input might cause the employee to feel overwhelmed or demotivated. They need to know that the goals set are achievable and that they are being set up to succeed not to fail.

  1. Regular follow ups

It’s all well and good having in depth meetings thrashing out the problems and then setting goals and tasks for the employee to complete to help them improve but if you don’t then meet with them regularly to assess their progress the chances are they will eventually go off the boil again. Regular follow ups are essential and needn’t be time consuming. A 15 minute catch up once a week is all that’s needed to keep track of their performance and motivate them to keep going.

  1. Deal with the employee’s concerns

If an underperforming staff member feels that there are issues within the business that are preventing them from achieving better results then it is really important that these problems addressed and measures put in place to ensure that the employees are able to perform at their best. Obviously not all changes can be made overnight but as long as steps are being taken then employees will feel that their needs are being met and any further underperformance will be on them.

  1. Encourage and motivate

Positive and constructive feedback is essential to keep any employee motivated through a period of improvement. The most important thing is to find out what makes your employee tick, what motivates them? If an employee is particularly motivated by financial reward then maybe this would be a good way to achieve the end goal, however, some may be more motivated by praise in front of their peers. Never assume you know what motivates a person as every employee is different.

  1. Use training and resources

It may be that the underperforming staff member needs retraining or additional training to help them achieve their goal. If this is an employee that you feel is worth keeping then it is always worth the extra time and effort required to make this happen. It might be worth finding a work buddy to help them experience better ways of doing their role or bringing in an external training provider to train a group of team members together. Remember your staff can often be undertrained but never over-trained.

  1. Formally follow up on underperformance

If, after all your efforts, the staff member is still not up to scratch then it is time to start formally documenting the issues and taking the employee down the disciplinary path. There needs to be timescales put in place from day one so that the employee knows that their underperformance can’t just continue forever, that there will be a time at which things become formal and bad performance will not longer be tolerated.

  1. Know when to call it a day

In every manager’s working life there will be a time when they have to let a team member go. It is never a pleasant job, but in business it is inevitable and the longer you leave it the more difficult and unpleasant it will be. If you are confident that you have done all you can to help an employee improve their performance and they have continued to bring in poor results then it is your duty for the sake of your business and the rest of your team to let that person go. Remember these things are not personal and will generally be the right thing for all concerned.

Keeping a happy motivated work force around you can make for a better working life. As a manager keep your ears close to the ground and always be aware of issues and grumblings in your team – this way you can deal with problems as soon as they occur and keep your successful business running smoothly.

Annual National Minimum Wage Increase

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The draft The National Minimum Wage (Amendment) Regulations 2017 have been published. The increase is proposed to come into effect on 1 April 2017.

The Regulations raise the national living wage (for those aged over 25) from £7.20 per hour to £7.50 per hour. There are other associated proposed increases for the other age bands as follows:-

National minimum wage for workers who are aged 21 or over (but not yet aged 25) from £6.95 to £7.05 per hour
The Rate for workers who are aged 18 or over (but not yet aged 21) from £5.55 to £5.60 per hour
The rate for workers who are under the age of 18 from £4.00 to £4.05 per hour
The apprenticeship rate increases from £3.40 to £3.50 per hour

Written by
Edward Aston
7th February 2017

Vexatious Job Applicants – Reassuring Judgement for Employers

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In the recent case of Kratzer R+V Allgemeine Versicherung AG, the European Court of Justice (ECJ) considered a situation whereby Mr Kratzer made a job application for a trainee position for graduates, which was rejected. He then complained and demanded compensation of €14,000 for age discrimination.

The employer stated that the rejection was as a result of an error and invited Mr Kratzer to interview but he declined. He said he wanted to be paid his compensation before discussing his future with them and when the Company refused to pay this he brought claims in a domestic court for age and sex discrimination, which were dismissed.

The ECJ held that where an individual applies for a job only in order to seek compensation for discrimination, and not to secure employment, they will not be covered by European legislation aimed at preventing discrimination of job applicants and those in employment. In this situation, the individual could not be said to be a victim of discrimination or have suffered loss or damage. Therefore, there was no entitlement to compensation.

This is a reassuring decision for employers who may be concerned that vexatious litigants could seek to rely on the protection offered by EU law to simply seek financial gain rather than access to employment.

Written by
Rachael Jessop
31st August 2016

Does travel to and from work count as working time?

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The European Court of Justice (ECJ) has provided guidance on what constitutes working time for those workers with no habitual workplace.

The ECJ looked at whether, for these types of workers, time spent travelling from home to customers’ premises and vice versa was working time under the Working Time Directive. It was concluded that it was.

The case arose as a result of two companies within the same group who employed technicians who were each assigned to a particular province or area of Spain. During 2011, the provincial offices were closed and all employees were assigned to a central office in Madrid.

The technicians use a company vehicle to travel from their homes to the places where they carry out their duties and then return home at the end of the day. The companies considered that the first journey of the day or the last journey home were “rest periods” and that the working day started when the technicians arrived at work and finished when they left their last assignment. Prior to the provincial offices closing, the employees calculated the working time as starting when a technician arrived at the office to pick up the vehicle and task list and finishing when they arrived back at that office to return the vehicle.

The technicians asserted that their first and last journeys of the day also amounted to working time. The Advocate General gave his opinion and stated that he considered that the first and last journey should be considered to be working time. He reached this conclusion based on the fact that traveling is an integral part of being a worker with no usual workplace, the journeys are subject to the authority of the employer and as travel is essential in the performance of the duties, it must be regarded as forming part of the “activity or duties” of those workers.

The ECJ agreed with the Advocate General and noted that not taking the journeys into account could have health and safety repercussions. It was also noted, in response to the companies’ concerns, that because the workers are “at the employer’s disposal” for the time of the journeys, they should act under their employer’s instruction and cannot use that time freely to pursue their own interests.

This ruling could have a significant impact on those companies who employ mobile workers who spend a lot of time travelling between customers. The main impact would be on working time and rest breaks. One consideration will be whether staff should be asked to opt out of the Working Time Directive’s 48-hour working week given that the first and last journeys will have to be taken into account.

If you require any advice or support on this issue, please feel free to contact our expert team of employment solicitors.

Written by
Edward Aston
15th September 2015