Employees who are unpaid carers for a person with long term care needs will be entitled to up to five days of unpaid leave a year Unpaid carer’s leave – GOV.UK (www.gov.uk).

The law is designed to protect and assist employees with care responsibilities. The new right is effective from the first day of employment, so there is no minimum period an employee has to be in their job for to be get this entitlement.

There is also flexibility depending on the need – for example, an employee can use a half day, full days or if needed use them all at once.

Notice to the employer does however have to be given. Furthermore, the notice needs to be for twice as much time as the leave required – or at the employers’ discretion for shorter notice. Employers can postpone leave when certain conditions are considered.

I am sure there are many employees who have the worry of juggling jobs and the responsibility of caring for someone. The new legislation acknowledges that there is a need to help those employees. Importantly if an employee needs that leave, the legislation is designed to give them protection from being dismissed or suffering detriment simply because they have exercised that right.

If an employee previously felt vulnerable asking for time to help someone for whom they had caring responsibilities, the introduction of this legislation hopefully gives them new comfort affording them new statutory rights and protection.

For further advice on the above, or any other Employment Law related matters, please contact our experienced team. We offer legal advice to both Employees and Employers.

Article written by Employment Solicitor, Kerry Hudson.

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The answer is that the law does not state a maximum (or a minimum) temperature.

However, the Workplace (Health, Safety and Welfare) Regulations 1992 lay down particular requirements for most aspects of the working environment. Regulation 7 deals specifically with the temperature in indoor workplaces and states that: ‘During working hours, the temperature in all workplaces inside buildings shall be reasonable.’

Guidance suggests a minimum of 16 degrees or 13 degrees if employee are doing physical work. There is no guidance for a maximum temperature limit.

The Health & Safety executive (HSE) states: In addition to the Workplace Regulations, the Management of Health and Safety at Work Regulations 1999 require employers to make a suitable assessment of the risks to the health and safety of their employees, and take action where necessary and where reasonably practicable. The temperature of the workplace is one of the potential hazards that employers should address to meet their legal obligations. Employers should consult with employees or their representatives to establish sensible means to cope with high temperatures.

Employers should do all they can to keep employees comfortable when working dusing a heatwave such as allowing them to wear casual clothes or relaxing their uniform policy, varying working hours or letting staff work from home where possible when extreme temperatures are expected.

Employees should discuss any concerns with their management or trade union representatives.

Visit the HSE website for further information: https://www.hse.gov.uk/temperature/law.htm

If you require any advice on any form of Employment Law either as an employee or employer contact us

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If you have been continuously employed for two years or more, you will have unfair dismissal rights. (Depending upon the nature of your illness, you may also be deemed to be disabled under The Equality Act 2010 and have rights under that Act.)

The recent Court of Appeal case of O’Brien v Bolton St Catherine’s Academy made some important points about when a dismissal for long-term sickness will be fair.

In this case, Ms O’Brien was the head of a department in a school. She was attacked by a pupil but did not suffer serious injuries and returned to work; however, she felt unsafe and had over a year off work for stress.

The employer enquired as to when Ms O’Brien may be returning to work and whether any adaptations were required. This information was not forthcoming and Ms O’Brien simply referred the employer back to her GP who did not feel able to confirm a return date.

The employer held a formal medical incapacity hearing under its internal procedures and dismissed Ms O’Brien. At that hearing, there was nothing to suggest that she would be returning in the near future. Ms O’Brien appealed the decision to dismiss her and there was then an internal appeal hearing which upheld her dismissal.

The principle matter for the Court of Appeal in respect of Ms O’Brien’s unfair dismissal claim was the consideration by the appeal panel of new medical evidence. At the appeal hearing, Ms O’Brien had produced a GP fit note and a letter from a psychologist that recommended courses of treatment. The appeal panel had concluded that the sudden production of this note was suspicious and was concerned about the inconsistent nature of the evidence.

The Court of Appeal held that the dismissal was unfair and provided valuable guidance about the fairness of dismissals in long-term sickness cases, as follows:

• If an employer decides to dismiss an employee following an absence of over 12 months, with no certainty about a return date, it will not necessarily be unfair. There will come a point where the employer is entitled to some finality but when that point comes will vary.

• The severity of the impact of the employee’s absence on the employer’s business is important. An Employment Tribunal will expect to see some evidence of disruption to the business although in some cases, the impact will be so severe that a general statement from the employer will be sufficient.

• If an employee is able to produce updated medical evidence, the decision to dismiss must be fair taking into account all the information that is available, even if this is only produced at the time of the appeal hearing.

In O’Brien the Court of Appeal held that the employer should have sought additional medical evidence before making a decision about the appeal; the dismissal was therefore unfair.

If you are on long-term sickness absence and you wish to discuss your situation, please contact our Employment Solicitor, Kerry Hudson on 024 7653 1532 or email at Kerry.Hudson@bttj.com

The above is not intended to provide advice.

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In addition to written terms about the settlement of claims and monies payable, the Settlement Agreement may also include other terms eg about the confidentiality of the Agreement.

Quite often, a reference will be included within the terms of the Settlement Agreement which your employer will agree to provide if a reference request is made by a future employer.

You will be required to take independent legal advice about the terms of the Settlement Agreement and it is usual for your employer to pay a contribution towards your legal costs for taking this advice.

You should be aware that you do not necessarily need to agree to the terms which are initially offered to you and sometimes your employer will be prepared to negotiate on the terms. You may prefer that we carry out such negotiations.

Once a valid Settlement Agreement has been signed, you will not be able to sue your employer for any claims referred to as settled in the Settlement Agreement.

Either you or your employer can start a discussion about the possibility of entering into a Settlement Agreement. If you think that “the writing is on the wall” in terms of your continued employment and consider that you have potential employment claims, you may wish to consider broaching the subject of a Settlement Agreement with your employer. This can result in a more satisfactory result than pursuing your claims in an Employment Tribunal as concluding a Settlement Agreement will give you a quicker and certain outcome. It is advisable to seek legal advice about your position and you can then decide whether to broach the subject with your employer. If you wish to raise the subject, you can do this personally or you can ask us to write a letter on your behalf, setting out your potential claims which can be more effective.

If you and your employer are unable to agree the terms of a Settlement Agreement, the Settlement offer and discussions cannot usually be referred to as evidence in any subsequent unfair dismissal claim but can be referred to in other claims. However, if there is already an existing dispute between you and your employer, any such discussions are likely to be covered by the “without prejudice” rule which means that they could not be revealed in any claims, whether unfair dismissal or otherwise.

If you are offered a Settlement Agreement or you would like to initiate discussions about an exit from your employment linked to a Settlement Agreement, please contact our Employment Solicitor, Kerry Hudson on 024 7653 1532 or email at Kerry.Hudson@bttj.com. Kerry specialises in Employment Law and is a trusted advisor to both employers and employees.

The above is not intended to provide advice.

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As a legal right it is enforceable before the Courts and the Employment Tribunals, but is also policed by the Government via HMRC and BIS (formerly DTI).

However, despite the clarity of rules and the fact that the requirement to pay NMW has been long established, some employers continue to ignore it and pay under the NMW. The Government has therefore set about toughening up the sanctions in order to force compliance; the new rules are expected to come into force in February 2014.

Penalties

Presently penalties are payable where a breach of the NMW is found. They are capped at 50% of the underpayment, and subject to a maximum £5,000 per person paid under the minimum wage, and subject to a 50% reduction if paid within 14 days of notice being provided by the HMRC.

Under the new rules, the government intends to increase the cap so that the fine will be equal to 100% of the underpayment for each employee. It will also increase the fine so that the sum of up to £20,000 per person found to be paid under the NMW. It is unclear whether the discount for early payment of any penalty will be payable.

It should be noted that the penalty is payable IN ADDITION to the requirement that the employer pays any employee the sums by which they have been underpaid.

Naming and Shaming

In 2013 the Government began “naming and shaming” employers that paid under the NMW; clearly this caused damage to the employers reputation making it increasingly difficult for them to attract new employees and also win new contracts for work.

However, under the 2013 scheme, a matter would only be referred to BIS where the employer had arrears of £2,000 or greater and an average of £500 per affected employee. Under the new rules all employers who fail to respond to a Notice of Underpayment issued by the HMRC within 28 days will be notified to BIS. The employer will then have 14 days to make representations to BIS as to why they should not be subject to naming and shaming; the only considerations that BIS will take into consideration are: i) where naming by BIS carries a risk of personal harm to an individual or their family, ii) there are national security risks associated with naming, iii) there are other factors which suggest that it would not be in the public interest to name the employer or company. Failure to submit representations, or failure to submit successful representations will see the employer “named and shamed” in the next BIS press release.

Conclusion

All employers should review their pay annually to ensure that it remains compliant with the NMW regulations, as a failure to do so could be very expensive and damaging to their business. Of course, the financial implications do not even start to consider the administrative headache that would also ensue in dealing with the HMRC, BIS, and their enforcement teams should they suspect that an underpayment of NMW is occurring or has occurred in the past, or indeed in dealing with any court/tribunal claim that may be issued.

For the avoidance of doubt, given that the NMW becomes an implied contractual term, an employee can bring a claim up to 6 years from the date of the underpayment.

If you employ others and you are unsure as to what constitutes payments of NMW, or you need further advice as to whether this applies to you, then please contact us on 024 7653 1532.

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For many employers getting to grips with what a fit note actually does is far from easy, and on face value they may think that such documents are in fact a joke; whilst some such notes simply say that the employee is unable to work, and are straight forward and easy to understand, others appear to dictate details of what an employee can and cannot do whilst he or she is at work, or the patterns which they may work.

Under the old scheme, the “Sick note” simply meant that an employee could not return to work, but the newer “fit note” appears to bind employers and appears confusing and unclear.

In order to try to clarify the relevance and use of “Fit Notes”, we aim to put some minds at ease and to dispel some myths. In doing so, the DWP’s 2013 guidelines are very useful and user friendly, and a recommended read to any Employer or manager who is unsure of how to deal with a fit note.

First, a “Fit Note” arises from Medical Practitioner Guidelines, they are not statutory, and they are not binding on the Employer. Therefore simply because the GP or medical practitioner says that Joe Bloggs should return on reduced hours does not mean that the Employer must comply with this. Equally, just because the GP does not provide an option does not mean that it is unviable.

Second, the start point in considering a Fit Note is that the employee is unable to attend work as they are not fit to do so. However, they may be able to attend work where certain adjustments can be made. If those adjustments cannot be made then they operate like the old “sick note” and the employee should remain away from the work place. In this circumstance the employee is not being suspended by the Employer on medical grounds, and therefore full pay is only required where there is a contractual provision, otherwise only SSP will be paid.

Third, the existence of a Fit Note does not mean that an employee cannot come back to work before it has expired, or that a new note is needed. An employee can return prior to its expiry. However, caution must be exercised in such circumstances; risk assessments should be undertaken and full consideration given to the matter. Failure to do so could leave the employee exposed to further injury and the workforce and the Employer’s business exposed to unnecessary risks, and the employer exposed to claims by the employee and investigations in to health and safety practices etc.

However, an employer cannot compel the employee to return before the expiry of the Fit Note, unless they can show that they have a genuine and reasonable belief that employee is not unwell. Whilst Fit notes can and should normally be used as evidence that the employee is unwell and unable to attend work, they can be challenged, and as stated above are not binding on the Employer, nevertheless it should be the exception and not the rule that such are challenged.

The Fit Note is therefore a starting point. It is designed to encourage communication between employer and employee and to facilitate a return to work at the earliest stage, where agreement can be reached between the parties. It is not big brother dictating to industry what it should do next or how it conducts its business, nor is it forcing an Employer’s hand into taking employees back early and risk infecting the rest of the workforce. Equally, the medical practitioner should be acting in the best interest of their patient, i.e. the employee, and therefore if there are concerns as to their ability to work then they will simply tick the box that says the employee is not fit to work, and the note works exactly the same as the old sick note.

Managing absence can often be a difficult and daunting task. However, if you have any questions please do contact me and I’d be happy to help.

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Does it Affect Employees?

What is it?

A transfer of undertakings occurs either where:

a) a third party buys or acquires part of the a business, or

b) there is a change in a provision of services and the business either:

a. engages contractors to carry out the work, or part of the work, that it previously carried out

b. changes contractors which it engages to carry out the work, or

c. it brings work previously carried out by a contractor in-house.

A transfer of undertaking does not occur on a share purchase as the Company entity remains the same, even though the owners may change.

Where is the Law governing Transfers of Undertakings set out?

The Law governing the Transfer of Undertakings is governed by the Transfer of Undertakings (Protection of Employment) Regulations 2006, which is often referred to as TUPE.

Who does it affect?

It affects Employees only. It does not apply to Workers, including agency workers.

Those Employees must form an organised grouping of employees situated in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client. A single employee can form an “organised grouping”. However, following the Seawell-v-Ceva case, an employee will only form part of that grouping if they are expressly said to have done so, it will not be enough to show that they simply have fallen into a pattern of work where its principal purpose has become working for a single client or carrying out a specific role.

What effect does it have?

Where there is a Transfer of Undertakings, the existing employees’ employment rights are protected.

Any employee that is caught in a transfer sees their employment transferred from their present employer to the new provider of that service. The new provider steps into the shoes of the old employer and takes on the employees on their existing terms of employment.

A new employer cannot change any of the terms of the old contracts without the consent of the employees where such changes are related to the transfer. Imposed changes to such terms of void.

Can any dismissals be made following a TUPE Transfer?

Any dismissal connected to the transfer, provided that the employee has the requisite qualifying continuous employment, will be automatically unfair.

A recent case, Manchester College v Hazel, has held that automatically unfair dismissals will include those where employees are dismissed following their refusal to vary their contracts of employment where a new employer seeks to harmonise the terms of employment with their existing employees.

However, if the reasons for the dismissal are Economic, Technical, or Organisational then there may be a defence open to the new employer. This would include redundancies etc, however, if such were contemplated then provision should be made for such in the consultations and the relevant information which is provided to the employees or their representatives?

Are There Any Exemptions To TUPE?

Yes. Regulation 8 provides that employees will not transfer with the business and/or its assets, or with the change of provider of the service where the employer is in liquidation. There was for some time some debate over which of the insolvency proceedings would attract this protection. However, please see the previous article entitled “TUPE 2006: Insolvency and Life After Oakland“.

What Else Can Employees Expect as a result of TUPE?

As a result of TUPE where there is a proposed transfer of undertakings the present employer must consult with the Employees about the transfer in order to provide certain details. The Consultations must happen as soon as reasonably practicable, and in any event enough time before the transfer to allow the consultation to be meaningful. The information to be provided is specifically set out in TUPE.

If the consultation does not happen then the employees may have a claim for up to 13 weeks pay by way of a “protective award”.

Whether you are an employee or an employer, if you have any questions or queries on TUPE and its implications for a position you find yourself in, please do not hesitate to contact us.

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